Exhibit 10.11


 


AMENDMENT AND RESTATEMENT AGREEMENT


 


dated 24 November 2004


 


INMARSAT GROUP HOLDINGS
LIMITED

(formerly called Duchessgrove Limited)

as the Company


 


and


 


BARCLAYS BANK PLC 

as Senior Agent


 


RELATING TO A SENIOR FACILITY AGREEMENT DATED


 


10 October 2003


 


as amended pursuant to Amendment Letters dated
 2 December 2003, 30 December 2003, 5
February 2004 and 8 April 2004


 





 





















 


CONTENTS


 


CLAUSE


 


	
  1.

  	
  Definitions and
  interpretation

  	
   

  
	
  2.

  	
  Conditions precedent

  	
   

  
	
  3.

  	
  Representations

  	
   

  
	
  4.

  	
  Amendment

  	
   

  
	
  5.

  	
  Transaction expenses and
  fees

  	
   

  
	
  6.

  	
  Miscellaneous

  	
   

  
	
  7.

  	
  Governing law

  	
   

  



 


THE SCHEDULES


SCHEDULE


 


	
  SCHEDULE 1 Conditions precedent

  	
   

  
	
  SCHEDULE
  2 Form of Amended Agreement

  	
   

  



 


i





















 


THIS
AGREEMENT is dated 24 November 2004 and made between:


 


(1)                                  INMARSAT
GROUP HOLDINGS LIMITED (formerly called Duchessgrove Limited), a company
incorporated in England and Wales with registered number 4886072 (the “Company”) (for itself and as duly
authorised agent for and on behalf of the Obligors); and


 


(2)                                  BARCLAYS
BANK PLC as agent of the Senior Finance Parties (the “Senior Agent”).


 


IT
IS AGREED as follows:


 


1.                                       DEFINITIONS AND INTERPRETATION


 


1.1           Definitions


 


In
this Agreement:


 


“Amended Agreement” means the Original
Senior Facility Agreement, as amended and restated in the form set out in
Schedule 2 (Form of Amended Agreement).


 


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


 


“Effective Date” means the date of the
notification by the Senior Agent under Clause 2 (Conditions precedent).


 


“Original Senior Facility Agreement” means
the Senior Facility Agreement dated 10 October 2003 between the Company, Newco,
the Original Obligors, the Mandated Lead Arrangers, the Bookrunners, the
Original Lenders, Barclays Bank PLC (as Agent and Security Trustee) and
Barclays Bank PLC (as Issuing Bank) as amended pursuant to Amendment Letters
dated 2 December 2003, 30 December 2003, 5 February 2004 and 8 April 2004.


 


“Senior Discount Notes Memorandum” means a
memorandum prepared by Clifford Chance LLP describing the intercreditor terms
applicable to the Senior Discount Notes.


 


1.2           Incorporation of defined terms


 


(a)                                  Unless a
contrary indication appears, a term defined in the Original Senior Facility
Agreement has the same meaning in this Agreement.


 


(b)                                 The
principles of construction set out in the Original Senior Facility Agreement
shall have effect as if set out in this Agreement.


 


1.3           Clauses


 


In
this Agreement any reference to a “Clause” or a “Schedule” is, unless the
context otherwise requires, a reference to a Clause of or a Schedule to this
Agreement.


 


1.4           Third Party Rights


 


A
person who is not a party to this Agreement has no right under the Contracts
(Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any
term of this Agreement.


 


1.5           Designation


 


In
accordance with the Original Senior Facility Agreement, each of the Company and
the Senior Agent designate this Agreement as a Senior Finance Document.


 


1





















 


1.6           Acknowledgement


 


(a)           The Company executes this Agreement for itself
and as duly authorised agent for and on behalf of the Obligors in accordance
with Clause 2.3 (Company as Obligor’s agent)
and paragraph (a) of Clause 38.1 (Required
consents) of the Original Senior Facility Agreement.


 


(b)           The Agent executes this Agreement in its
capacity as Agent and for and on behalf of the Senior Finance Parties in
accordance with paragraph (b) of Clause 38.1 (Required
consents) of the Original Senior Facility Agreement.


 


2.             CONDITIONS PRECEDENT


 


The
provisions of Clause 4 (Amendment)
shall be effective only if the Agent has received all the documents and other
evidence listed in Schedule 1 (Conditions
precedent) in form and substance satisfactory to the Agent. The
Agent shall notify the Company and each other Senior Finance Party promptly
upon being so satisfied.


 


3.             REPRESENTATIONS


 


(a)           The Company and each Obligor makes the
Repeating Representations, by reference to the facts and circumstances then
existing on:


 


(i)                                     the date
of this Agreement; and


 


(ii)                                  the
Effective Date,


 


but
as if references in Clause 22 (Representations)
of the Original Senior Facility Agreement were instead to this Agreement and,
on the Effective Date, to the Amended Agreement.


 


(b)           In addition, on the date of this Agreement, the
Company and each Obligor represents and warrants to each Senior Finance Party
that the Senior Discount Notes Memorandum is a true and accurate description in
all material respects of the intercreditor arrangements relating to the Senior
Discount Notes.


 


4.             AMENDMENT


 


4.1           Amendment


 


With
effect from the Effective Date the Original Senior Facility Agreement shall be
amended and restated in the form set out in Schedule 2 (Form of Amended Agreement).


 


4.2           Continuing obligations


 


The
provisions of the Original Senior Facility Agreement and the other Finance
Documents shall, save as amended by this Agreement, continue in full force and
effect.


 


5.             TRANSACTION EXPENSES AND FEES


 


(a)                                  The Company shall
within three Business Days of demand reimburse the Agent for the amount of all
costs and expenses (including reasonable legal fees) incurred by the Agent in
connection with the negotiation, preparation, printing and execution of this
Agreement and any other documents referred to in this Agreement.


 


(b)           The Company shall on the date of this Agreement
and in relation to each Lender which has consented to the amendments to the
Original Senior Facility Agreement effected hereby prior to 5.00pm on 23
November 2004 (each a “Consenting Lender”),
pay to the Agent (for the account of each Consenting Lender) a fee in dollars
computed at the rate of 0.15 per cent. of the amount


 


2





















 


of
that Consenting Lender’s Commitment under each Facility as at 5.00pm on 10
November 2004.


 


6.             MISCELLANEOUS


 


6.1           Incorporation of terms


 


The
provisions of Clause 34 (Notices)
and Clause 41 (Enforcement) of
the Original Senior Facility Agreement shall be incorporated into this
Agreement as if set out in full in this Agreement and as if references in those
clauses to “this Agreement” are references to this Agreement.


 


6.2           Counterparts


 


This
Agreement may be executed in any number of counterparts, and this has the same
effect as if the signatures on the counterparts were on a single copy of this
Agreement.


 


7.             GOVERNING LAW


 


This
Agreement is governed by English law.


 


This
Agreement has been entered into as a deed on the date stated at the beginning
of this Agreement.


 


3





















 


SCHEDULE 1


 


CONDITIONS PRECEDENT


 


1.                                       Obligors


 


A
copy of the constitutional documents of each Obligor or a certificate of an
authorised signatory of each relevant Obligor certifying that the
constitutional documents previously delivered to the Agent for the purposes of
the Original Senior Facility Agreement have not been amended and remain in full
force and effect.


 


2.                                       Other
documents and evidence


 


(a)           Evidence that the costs and expenses then due
from the Company pursuant to Clause 5 (Transaction
expenses) have been paid.


 


(b)           A copy of the Senior Discount Notes Memorandum.


 


4





















 


SCHEDULE 2


 


FORM OF AMENDED AGREEMENT


 


5





















 


SIGNATURES


 


	
  The Company

  	
   

  
	
   

  	
   

  
	
  SIGNED by

  	
   

  	
  /s/
  RICHARD MEDLOCK

  
	
   

  	
   

  
	
  for
  and on behalf of INMARSAT GROUP HOLDINGS
  LIMITED for itself and as duly authorised agent for and on behalf
  of the Obligors:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Address
  :

  	
  99
  City Road 

  	
   

  
	
   

  	
  London

  	
   

  
	
   

  	
  EC1Y
  1AX

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7600 5555

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
  Company
  secretaries (with a copy to Matthew Layton)

  
	
   

  	
   

  
	
   

  	
   

  
					



 


	
  The Agent

  	
   

  
	
  in its capacity as Agent and for and on behalf of each
  other Senior Finance Party

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SIGNED by

  	
   

  	
  /s/
  NILMANI TILAKAPALA

  
	
  for
  and on behalf of BARCLAYS BANK PLC

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Address
  :

  	
  5
  North Colonnade

  	
   

  
	
   

  	
  Canary
  Wharf

  	
   

  
	
   

  	
  London

  	
   

  
	
   

  	
  E14
  5BB

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7773 4893

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
  Frank
  Rogers

  
					



 


6





















 


$975,000,000


 


SENIOR FACILITY AGREEMENT


 


dated 10 October 2003


 


(as amended and restated pursuant to an
amendment and restatement agreement dated 24 November 2004)


 


for


 


INMARSAT GROUP HOLDINGS LIMITED 

(FORMERLY CALLED DUCHESSGROVE LIMITED


 


and


 


INMARSAT INVESTMENTS LIMITED 

(FORMERLY CALLED GRAPECLOSE LIMITED)


 


arranged by

BARCLAYS CAPITAL

CREDIT SUISSE FIRST BOSTON

and

THE ROYAL BANK OF SCOTLAND plc


 


with

BARCLAYS CAPITAL

CREDIT SUISSE FIRST BOSTON


and

THE ROYAL BANK OF SCOTLAND plc

acting as Bookrunners

BARCLAYS BANK PLC

acting as Agent


 


BARCLAYS BANK PLC

acting as Security Trustee

and


BARCLAYS BANK PLC


acting as Issuing Bank


 


Note:
This Agreement is entered into on the basis that it will have the benefit of
and be subject to the terms of the Intercreditor Agreement.


 





 





















 


CONTENTS


 


CLAUSE


 


	
  SECTION 1 INTERPRETATION

  
	
  1.

  	
  Definitions and interpretation

  	
   

  
	
  SECTION 2

  THE FACILITIES

  
	
  2.

  	
  The Facilities

  	
   

  
	
  3.

  	
  Purpose

  	
   

  
	
  4.

  	
  Conditions of Utilisation

  	
   

  
	
  SECTION 3

  UTILISATION

  
	
  5.

  	
  Utilisation – Loans

  	
   

  
	
  6.

  	
  Utilisation – Letters of Credit and Bank
  Guarantees

  	
   

  
	
  7.

  	
  Letters of Credit and Bank Guarantees

  	
   

  
	
  8.

  	
  Optional Currencies

  	
   

  
	
  9.

  	
  Ancillary Facilities

  	
   

  
	
  SECTION 4

  REPAYMENT, PREPAYMENT AND CANCELLATION

  
	
  10.

  	
  Repayment of Loans

  	
   

  
	
  11.

  	
  Prepayment and cancellation

  	
   

  
	
  SECTION 5

  COSTS OF UTILISATION

  
	
  12.

  	
  Interest

  	
   

  
	
  13.

  	
  Interest
  Periods

  	
   

  
	
  14.

  	
  Changes to the calculation of interest

  	
   

  
	
  15.

  	
  Fees

  	
   

  
	
  SECTION 6

  ADDITIONAL PAYMENT OBLIGATIONS

  
	
  16.

  	
  Tax gross-up and indemnities

  	
   

  
	
  17.

  	
  Increased
  Costs

  	
   

  
	
  18.

  	
  Other
  indemnities

  	
   

  
	
  19.

  	
  Mitigation by the Lenders

  	
   

  
	
  20.

  	
  Costs and expenses

  	
   

  
	
  SECTION 7

  GUARANTEE AND SECURITY

  
	
  21.

  	
  Guarantee and indemnity

  	
   

  
	
  SECTION 8

  REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT

  
	
  22.

  	
  Representations

  	
   

  
	
  23.

  	
  Information undertakings

  	
   

  
	
  24.

  	
  Financial Covenants

  	
   

  
	
  25.

  	
  General undertakings

  	
   

  
	
  26.

  	
  Events
  of Default

  	
   

  



 


i





















 


	
  SECTION 9

  CHANGES TO PARTIES

  
	
  27.

  	
  Changes to the Lenders

  	
   

  
	
  28.

  	
  Changes to the Obligors

  	
   

  
	
  SECTION 10

  THE SENIOR FINANCE PARTIES

  
	
  29.

  	
  Role of
  the Agent, the Mandated Lead Arrangers and the Bookrunners

  	
   

  
	
  30.

  	
  Conduct of business by the Senior Finance
  Parties

  	
   

  
	
  31.

  	
  Sharing among the Senior Finance Parties

  	
   

  
	
  SECTION 11

  ADMINISTRATION

  
	
  32.

  	
  Payment
  mechanics

  	
   

  
	
  33.

  	
  Set-off

  	
   

  
	
  34.

  	
  Notices

  	
   

  
	
  35.

  	
  Calculations and certificates

  	
   

  
	
  36.

  	
  Partial Invalidity

  	
   

  
	
  37.

  	
  Remedies and waivers

  	
   

  
	
  38.

  	
  Amendments and waivers

  	
   

  
	
  39.

  	
  Counterparts

  	
   

  
	
  SECTION 12

  GOVERNING LAW AND ENFORCEMENT

  
	
  40.

  	
  Governing
  law

  	
   

  
	
  41.

  	
  Enforcement

  	
   

  
	
  THE SCHEDULE

  SIGNATURE PAGE

  
	
   

  	
   

  	
   

  
	
  SCHEDULE
  1 The Original Parties

  	
   

  
	
  SCHEDULE
  2 Conditions precedent

  	
   

  
	
  SCHEDULE
  3 Requests

  	
   

  
	
  SCHEDULE
  4 Mandatory Cost formulae

  	
   

  
	
  SCHEDULE
  5 Form of Transfer Certificate

  	
   

  
	
  SCHEDULE
  6 Form of Accession Letter

  	
   

  
	
  SCHEDULE
  7 Form of Compliance Certificate

  	
   

  
	
  SCHEDULE
  8 Timetables

  	
   

  
	
  SCHEDULE
  9 Form of Letter of Credit

  	
   

  
	
  SCHEDULE
  10 Form of Bank Guarantee

  	
   

  



 


ii





















 


THIS AGREEMENT is dated 10 October 2003 and made between:


 


(1)           INMARSAT GROUP
HOLDINGS LIMITED (FORMERLY CALLED DUCHESSGROVE LIMITED), a company incorporated
in England and Wales with registered number 4886072 (the “Company”);


 


(2)           INMARSAT INVESTMENTS
LIMITED (FORMERLY CALLED GRAPECLOSE LIMITED), a company incorporated in England
and Wales with registered number 4886096 (“Newco”);


 


(3)           THE SUBSIDIARIES of
the Company listed in Part I of Schedule 1 (The
Original Parties) as original borrowers (the “Original Borrowers”);


 


(4)           THE SUBSIDIARIES of
the Company listed in Part I of Schedule 1 (The
Original Parties) as original guarantors (the “Original Guarantors”);


 


(5)           BARCLAYS CAPITAL,
CREDIT SUISSE FIRST BOSTON and THE ROYAL BANK OF SCOTLAND plc (whether acting
individually or together, the “Mandated Lead
Arrangers”);


 


(6)           BARCLAYS CAPITAL,
CREDIT SUISSE FIRST BOSTON and THE ROYAL BANK OF SCOTLAND plc (whether acting
individually or together, the “Bookrunners”);


 


(7)           HE FINANCIAL
INSTITUTIONS listed in Part II of Schedule 1 (The
Original Parties) as lenders (the “Original
Lenders”);


 


(8)           BARCLAYS BANK PLC as
agent of the other Senior Finance Parties (the “Agent”);


 


(9)           BARCLAYS BANK PLC as
security trustee and security agent for the Finance Parties (the “Security Trustee”); and


 


(10)         BARCLAYS BANK PLC as
issuer of letters of credit and/or bank guarantees (the “Issuing Bank”).


 


IT
IS AGREED as follows:


 


SECTION 1


INTERPRETATION


 


1.             DEFINITIONS AND INTERPRETATION


 


1.1           Definitions


 


In
this Agreement:


 


“Acceleration Date” means the date (if any)
on which the Agent gives a notice under Clause 26.21 (Acceleration).


 


“Accession Letter” means a document
substantially in the form set out in Schedule 6 (Form of Accession Letter).


 


“Accountants’ Report” means the accounting,
pensions and taxation report by PricewaterhouseCoopers relating to the Acquired
Group.


 


“Accounting Month” means each period of
approximately 30 days ending on the last day of each calendar month in any
financial year of the Company.


 





















 


“Accounting Quarter” means each of the
periods of approximately 13 weeks in any financial year of the Company the
first of which commences on 1 January in each such financial year and the last of
which ends on 31 December.


 


“Acquired Group”
means the Target and its Subsidiaries.


 


“Acquired Group Member” means the Target,
Inmarsat (IP) Company limited (a company incorporated in England and Wales with
registered number 3930467), and any member of the Acquired Group which is a
Material Subsidiary.


 


“Acquisition” means the acquisition by Newco
of the entire newly issued share capital of the Target pursuant to the Scheme
of Arrangement.


 


“Acquisition Costs” means all costs,
commissions, fees and expenses (and Tax on them) and all stamp duty,
registration and other similar Tax incurred by or on behalf of Newco, any other
member of the Group and/or the Acquired Group in connection with the
Acquisition, its financing, refinancing and/or the Facilities, the hedging
arrangements to be effected in accordance with the Hedging Policy relating to
the Facilities, the Bridge Facility, the High Yield Notes Finance Documents
and/or the Transaction Documents as set out in the summary of acquisition costs
provided to the Mandated Lead Arrangers.


 


“Additional Borrower” means a company which
becomes an additional borrower in accordance with Clause 28 (Changes to the Obligors).


 


“Additional Cost Rate” has the meaning given
to it in Schedule 4 (Mandatory Cost
formulae).


 


“Additional Guarantor” means a company which
becomes an additional guarantor in accordance with Clause 28 (Changes to the Obligors).


 


“Additional  High Yield Inter-Company Loan Agreement” means the agreement
to be entered into on or about the date on which the Additional High Yield
Notes are issued between the High Yield Notes Issuer and Newco on terms
substantially the same as the Original High Yield Inter-Company Loan Agreement
and consistent with the Intercreditor Agreement pursuant to which the High Yield
Notes Issuer will make a loan, subordinated to the Senior Finance Documents, to
Newco on (or around) the date on which the Additional High Yield Notes are
issued for the purpose of indirectly funding DDBCo’s redemption or purchase of
up to $100,000,000 in principal amount outstanding of Subordinated Preference
Certificates and up to $5,000,000 of fees and expenses associated therewith.


 


“Additional High Yield Notes” means the high
yield notes of up to $105,000,000 in principal amount due 30 June 2012 to be
issued by the High Yield Notes Issuer on substantially similar terms as the
Original High Yield Notes pursuant to Section 2.13 (Further Issues) of the High Yield Notes Indenture and
consistent with the Intercreditor Agreement for the purposes of indirectly
funding DDBCo’s redemption or purchase of up to $100,000,000 in principal
amount outstanding of Subordinated Preference Certificates, together with fees
and expenses associated therewith of up to $5,000,000.


 


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


 


“Affiliate” means, in relation to any
person, a Subsidiary of that person or a Holding Company of that person or any
other Subsidiary of that Holding Company.


 


2





















 


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


 


“Agreed Form” means a document that:


 


(a)                                  is in a
form initialled by or on behalf of Newco and the Agent on or before the signing
of this Agreement for the purposes of identification; or


 


(b)                                 if not
falling within paragraph (a) above, is in form and substance satisfactory to
the Agent (acting reasonably).


 


“Airia Dispute” means the dispute between
the Target and APR Limited in relation to Airia Limited and Airia Services
Limited referred to in the Due Diligence Report.


 


“Amendment and Restatement Agreement” means
the amendment and restatement agreement relating to this Agreement dated 24
November 2004.


 


“Ancillary Commitment” means, in relation to
an Ancillary Lender and an Ancillary Facility, the maximum Base Currency Amount
from time to time agreed (whether or not subject to satisfaction of conditions
precedent and whether or not utilised) to be made available by that Ancillary
Lender under an Ancillary Facility and authorised under Clause 9 (Ancillary Facilities), to the extent not
cancelled or reduced under this Agreement or pursuant to the terms of such
Ancillary Facility.


 


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


 


“Ancillary Facility Document” means a
document setting out the terms of an Ancillary Facility, any instrument
evidencing any Ancillary Outstandings under that Ancillary Facility and any
other hedging or derivative document relating to that Ancillary Facility.


 


“Ancillary Facility Request” means a notice
substantially in the form set out in Part IV of Schedule 3 (Requests).


 


“Ancillary Lender” means a Lender which
agrees to make available an Ancillary Facility in accordance with Clause 9 (Ancillary Facilities).


 


“Ancillary Outstandings” means (without
double counting), at any time and in relation to an Ancillary Facility, the
aggregate (calculated in the Base Currency) of the following amounts
outstanding at that time under that Ancillary Facility:


 


(a)                                  all
amounts of (or equivalent to) principal then outstanding under any overdraft,
cheque clearing, automatic payment or other current account facility after
netting any credit balance which the applicable Ancillary Lender may have set
off against such principal;


 


(b)                                 the
maximum potential liability under all guarantees, bonds and letters of credit
issued under that Ancillary Facility save to the extent that cash cover in
respect of such potential liability has been provided to the relevant Ancillary
Lender;


 


(c)                                  in
relation to any derivative transaction entered into for protection against or
benefit from fluctuation in any rate or price, such amount as fairly represents
the aggregate exposure of the Ancillary Lender under that Ancillary Facility;
and


 


3





















 


(d)                                 in
relation to any other Ancillary Facility, such other amount as fairly
represents the aggregate exposure of the Ancillary Lender under that Ancillary
Facility,


 


in
each case determined by the relevant Ancillary Lender in accordance with its
usual practice at that time for calculating its exposure under similar
facilities or transactions (acting reasonably).


 


For
the purposes of this definition:


 


(i)                                     in
relation to any utilisation denominated in the Base Currency, the amount of
that utilisation (determined as described in paragraphs (a) to (d) above) shall
be used; and


 


(ii)                                  in
relation to any utilisation not denominated in the Base Currency, the
equivalent (calculated as specified in the relevant Ancillary Facility Document
or, if not so specified, as the relevant Ancillary Lender may specify, in each
case in accordance with its usual practice at that time for calculating that
equivalent (acting reasonably) in the Base Currency of the amount of that
utilisation (determined as described in paragraphs (a) to (d) above) shall
be used.


 


“Announcement Date” means the date on which
the Press Release is issued.


 


“Apax” means Apax Partners Worldwide LLP.


 


“Applicable Accounting Principles” means
GAAP and practices and financial reference periods used in the Financing Case.


 


“Approved Hedging  Bank” means:


 


(a)                                  in
relation to any hedging arrangements where there is no ongoing liability of the
relevant member of the Group, any bank or financial institution; and


 


(b)                                 in
relation to any other hedging arrangements other than those referred to in
paragraph (a) above, any Senior Finance Party or Bridge Facility Finance Party.


 


“Authorisation” means an authorisation,
consent, approval, resolution, licence, exemption, filing, notarisation or
registration (including any relevant landlord consent’s to create security or
to lease any property, any registration on the International Telecommunication
Union’s Master International Frequency Register and any licence or
authorisation required under the Outer Space Act 1986, the Wireless Telegraphy
Act 1949 or the Communications Act 2003 (and any equivalent or analogous laws
in any relevant jurisdiction)).


 


“Availability Period” means:


 


(a)                                  in
relation to each Term Facility, the period from and including the date of this
Agreement to the earlier of (i) the date falling 180 days after the date of
this Agreement and (ii) the date falling 14 days after the Completion Date;


 


(b)                                 in
relation to the Capex Facility, the period from and including the Completion
Date to and including the date falling three years from the Completion
Date; and


 


(c)                                  in
relation to the Revolving Facility, the period from date of signing of this
Agreement to and including the date falling one month prior to the
Termination Date applicable to the Revolving Facility.


 


4





















 


“Available Ancillary Commitment” means, in
relation to an Ancillary Facility, an Ancillary Lender’s Ancillary Commitment
less the Ancillary Outstandings in relation to that Ancillary Facility.


 


“Available Commitment” means, in relation to
a Facility, a Lender’s Commitment under that Facility minus:


 


(a)                                  the Base
Currency Amount of its participation in any outstanding Utilisations under that
Facility;


 


(b)                                 in
relation to any proposed Utilisation, the Base Currency Amount of its
participation in any Utilisations that are due to be made under that Facility
on or before the proposed Utilisation Date; and


 


(c)                                  in the
case of the Revolving Facility only, the Base Currency Amount of its Ancillary
Commitment in relation to any new Ancillary Facility that is due to be made
available on or before the proposed Utilisation Date of that Revolving
Facility,


 


plus,
in relation to the Revolving Facility only:


 


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


 


(ii)                                  the amount
of that Lender’s Ancillary Commitment (if any) to the extent that it is due to
be reduced or cancelled on or before the proposed Utilisation Date.


 


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


 


“Bank Guarantee” means a bank guarantee
issued or to be issued by the Issuing Bank under the Revolving Credit Facility
substantially in the form set out in Schedule 10 (Form of Bank Guarantee) or in such other form requested by a
Borrower which is acceptable to the Agent (with the prior consent of the
Majority Revolving Lenders) and the Issuing Bank.


 


“Base Currency” means dollars.


 


“Base Currency Amount” means:


 


(a)                                  in
relation to a Utilisation, the amount specified in the Utilisation Request
delivered by a Borrower for that Utilisation (or, if the amount requested is
not denominated in the Base Currency, that amount converted into the Base
Currency at the Agent’s Spot Rate of Exchange on the date which is
3 Business Days before the Utilisation Date or, if later, on the date the
Agent receives the Utilisation Request) and in the case of a Letter of Credit
or Bank Guarantee, as adjusted under Clause 6.8 (Revaluation of Letters of Credit or Bank Guarantees)
on 30 June and 31 December in each year; and


 


(b)                                 in
relation to an Ancillary Commitment, the amount specified in the notice
delivered to the Agent by Newco pursuant to paragraph (b)(vi) of Clause 9.3 (Request for Ancillary Facilities),


 


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


 


5





















 


“Bondco” means a public limited company to
be incorporated in England and Wales as a wholly owned direct subsidiary of
Midco.


 


“Borrower” means an Original Borrower or an
Additional Borrower.


 


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


 


(a)                                  the
interest (excluding the Margin and Mandatory Cost) which a Lender should have
received for the period from the date of receipt of all or any part of its
participation in a Loan or Unpaid Sum to the last day of the current Interest
Period in respect of that Loan or Unpaid Sum, had the principal amount or
Unpaid Sum received been paid on the last day of that Interest Period;


 


exceeds:


 


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


 


“Bridge Facility” means a $365,000,000
subordinated bridge facility made, or to be made, available under the Bridge
Facility Agreement.


 


“Bridge Facility Agent” means the “Agent” as
defined in the Bridge Facility Agreement.


 


“Bridge Facility Agreement” means the
$365,000,000 subordinated bridge agreement dated on or about the date of this
Agreement and made between (among others) the Company, Newco, the Bridge
Facility Arrangers, the Bridge Facility Agent, the Bridge Facility Lenders and
the Security Trustee setting out the terms and conditions on which the Bridge Facility
Outstandings will be made available to Newco.


 


“Bridge Facility Arrangers” means Barclays
Capital, Credit Suisse First Boston and The Royal Bank of Scotland plc.


 


“Bridge Facility Fee Letter” means any
letter or letters dated before or on or about the date of the Bridge Facility
Agreement between the Bridge Facility Arrangers and Newco setting out any of
the fees referred to in the Bridge Facility Agreement.


 


“Bridge Facility Finance Documents” means
the Bridge Facility Agreement, any guarantor or borrower accession letter under
the Bridge Facility Agreement, the Bridge Facility Fee Letter, the Security
Documents, the Intercreditor Agreement, the Bridge Facility Warrant Instrument,
the Bridge Subordinated Preference Certificates, the Bridge Subordinated
Preference Certificates Instrument and any other documents designated as such
by the Bridge Facility Agent and the Company.


 


“Bridge Facility Finance Party” means the
Bridge Facility Agent, the Bridge Facility Arrangers, the Bridge Facility
Lenders and the Security Trustee.


 


“Bridge Facility Lenders” means the banks
and financial institutions defined as “Lenders” in the Bridge Facility
Agreement.


 


“Bridge Facility Outstandings” means the
aggregate amount outstanding at any time in respect of principal under the
Bridge Facility.


 


6





















 


“Bridge Facility Warrant Instrument” means
the warrant instrument made or to be made by the Company in accordance with the
terms of the Bridge Facility Finance Documents.


 


“Bridge Subordinated Preference Certificates”
means the tranche A subordinated preference certificates, in the same form as
the Subordinated Preference Certificates, issued or to be issued by the Company
or DDBCo to certain of the Bridge Facility Finance Parties (or their
Affiliates, assignees, transferees or any trustee on behalf of such parties)
which are subordinated on the terms set out in the Intercreditor Agreement.


 


“Bridge Subordinated Preference Certificates Instrument”
means the deed poll instrument in the same form as the Subordinated Preference
Certificates Instrument pursuant to which the Bridge Subordinated Preference
Certificates are, or are to be, constituted.


 


“Budget” means each budget supplied under
and complying with Clause 23.5 (Annual
Budget).


 


“Business Day” means a day (other than a
Saturday or Sunday) on which banks are open for general business in London and
New York; and:


 


(a)                                  (in
relation to any date for payment or purchase of a currency other than euro) the
principal financial centre of the country of that currency; or


 


(b)                                 (in
relation to any date for payment or purchase of euro) any TARGET Day.


 


“Capex Facility” means the senior capital
expenditure facility made available under this Agreement as described in
paragraph (d) of Clause 2.1 (The Facilities).


 


“Capex Facility Borrower” means:


 


(a)                                  each
Borrower identified as a Capex Facility Borrower in Part I of Schedule 1 (The Original Parties); and


 


(b)                                 any
Additional Borrower identified in an Accession Letter as a Borrower under the
Capex Facility,


 


other
than in the case of an Original Borrower, following accession as an Obligor in
accordance with this Agreement.


 


“Capex Facility Commitment” means:


 


(a)                                  in
relation to an Original Lender, the amount in the Base Currency set opposite
its name under the heading “Capex Facility Commitment” in Part II of Schedule 1
(The Original Parties) and the
amount of any other Capex Facility Commitment transferred to it under this
Agreement; and


 


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


 


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


 


“Capex Facility Lender” means:


 


(a)                                  any
Original Capex Facility Lender; and


 


(b)                                 any bank,
financial institution, trust, fund or other entity which has become a Capex
Facility Lender in accordance with Clause 27 (Changes
to the Lenders),


 


7





















 


which
in each case has not ceased to be a Capex Facility Lender in accordance with
this Agreement.


 


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


 


“Capex Facility Repayment Date” means each
date specified in paragraph (a) of Clause 10.4 (Repayment of Capex Facility Loans) for the payment of a
Capex Facility Repayment.


 


“Capex Facility Repayment Instalment” means
each instalment for repayment of the Capex Facility Loans specified in
paragraph (a) of Clause 10.4 (Repayment of
Capex Facility Loans).


 


“Capital Expenditure” means any expenditure
which should in accordance with the Applicable Accounting Principles be treated
as capital expenditure in the audited consolidated financial statements of the
Group.


 


“Cash” means any credit balance on any
deposit (including time deposits), savings, current or other account held in
accordance with Clause 25.21 (Bank Accounts),
and any cash in hand.


 


“Cash Equivalent Investments” means:


 


(a)                                  securities
with a maturity of less than 12 months from the date of acquisition issued
or fully guaranteed or fully insured by the Government of the United States or
any member state of the European Union which is rated at least A-1 by Standard
& Poor’s Ratings Group or P-1 by Moody’s Investors Service, Inc.;


 


(b)                                 commercial
paper or other debt securities issued by an issuer rated at least A-1 by
Standard & Poor’s Ratings Group or P-1 by Moody’s Investors Service, Inc.
and with a maturity of less than 12 months; and


 


(c)                                  certificates
of deposit or time deposits of any commercial bank (which has outstanding debt
securities rated as referred to in paragraph (b) above) and with a maturity of
less than 12 months.


 


“Cashflow” has the meaning given to it in
Clause 24.7 (Definitions).


 


“Certain Funds Default” means:


 


(a)                                  an Event
of Default arising under or in connection with Clause 26.1 (Non-payment);


 


(b)                                 an Event
of Default arising under or in connection with Clause 26.3 (Other obligations) as it relates to:


 


(i)                                     Clause
25.6 (Acquisitions and investments);


 


(ii)                                  Clause
25.10 (Holding company);


 


(iii)                               Clause
25.15 (Negative pledge);


 


(iv)                              Clause
25.18 (Guarantees);


 


(v)                                 Clause
25.20 (Financial Indebtedness);


 


(vi)                              Clause
25.28 (The Scheme of Arrangement);


 


(vii)                           Clause
25.29 (Rule 9 bid) insofar as it
relates to any action taken by any member of the Group or any person acting in
concert with any member of the Group;


 


8





















 


(viii)                        Clause
25.32 (Amendments of lnvestor Documents,
Bridge Facility Finance Documents and High Yield Notes Finance Documents);
or


 


(ix)                                Clause
25.34 (Anti-money laundering),


 


in
each case only as it relates to any Holdco;


 


(c)           an Event of Default arising under or in
connection with Clause 26.4 (Misrepresentation)
as it relates to:


 


(i)                                     Clause
22.1 (Status);


 


(ii)                                  Clause
22.2 (Binding obligations);


 


(iii)                               Clause
22.3 (Non-conflict with other obligations);


 


(iv)                              Clause
22.4 (Power and authority);


 


(v)                                 Clause
22.6 (No default) as it relates
to a Certain Funds Default;


 


(vi)                              paragraphs
(a) and (b) of Clause 22.13 (lnvestor
Documents and Bridge Facility Finance Documents);


 


(vii)                           Clause
22.15 (No prior business); or


 


(viii)                        Clause
22.16 (No Financial indebtedness or Security),


 


in
each case only as it relates to any Holdco;


 


(d)                                 an Event
of Default arising under or in connection with Clause 26.6 (Insolvency) or 26.7 (Insolvency proceedings) in each case only
as it relates to any Holdco; or


 


(e)                                  an Event
of Default arising under or in connection with Clause 26.10 (Unlawfulness) or 26.11 (Repudiation) in each case only as it
relates to any Holdco.


 


“Certain Funds Period” means the period from
and including the date of this Agreement to and including the earliest of:


 


(a)                                  the date
on which any Mandatory Cancellation Event occurs; and


 


(b)                                 the end of
the Availability Period applicable to the Term Facilities.


 


“Charged Assets” means the assets over which
Security is expressed to be created pursuant to any Security Document.


 


“Chargor” means any person expressed to
create Security pursuant to any Security Document.


 


“Chief Executive Officer” means Michael
Storey and any replacement chief executive officer (or equivalent officer) from
time to time of the Company.


 


“Chief Financial Officer” means Ramin Khadem
and any replacement chief financial officer (or equivalent officer) from time
to time of the Company.


 


“City Road Property” means the leasehold
property of the Acquired Group located at 99 City Road, London EC1.


 


“Clean-up Period” means the period of 90
days from and including the Completion Date.


 


“Code” means the City Code on Takeovers and
Mergers.


 


9





















 


“Commencement Date” has the meaning given to it in Clause 9.3 (Request for Ancillary Facilities).


 


“Commercial Report” means the commercial
report by McKinsey & Company.


 


“Commitment” means a Facility A Commitment,
Facility B Commitment, Facility C Commitment, Capex Facility Commitment,
Revolving Facility Commitment and/or Ancillary Commitment.


 


“Completion Date” means the date that an
office copy of the court order sanctioning the Scheme of Arrangement has been
filed with, and registered by, the Registrar of Companies of England and Wales.


 


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


 


“Confidentiality Undertaking” means a
confidentiality undertaking substantially in the form agreed between the
Company and the Mandated Lead Arrangers on or prior to the date of this
Agreement or in any other form agreed between the Company and the Agent.


 


“DDBCo” means Inmarsat Holdings Limited
(formerly called Lavenderview Limited), a company incorporated in England and
Wales with registered number 4917504.


 


“Debenture 1” means a first ranking
debenture in favour of the Security Trustee incorporating fixed and floating
charges over all of the present and future assets of Newco, as Security for all
the obligations of the Obligors under the Finance Documents (other than the
High Yield Notes Finance Documents, the Bridge Subordinated Preference
Certificates and the Bridge Subordinated Preference Certificates Instrument).


 


“Debenture 2” means a first ranking
debenture in favour of the Security Trustee incorporating fixed and floating
charges over all of the present and future assets of the Chargor, as Security for
all the obligations of the Obligors under the Finance Documents (other than the
High Yield Notes Finance Documents, the Bridge Subordinated Preference
Certificates and the Bridge Subordinated Preference Certificates Instrument).


 


“Default” means an Event of Default or any
event or circumstance specified in Clause 26 (Events of Default) which would (with the lapse of time, the
giving of notice, the making of any determination under the Senior Finance
Documents or any combination of any of the foregoing) be an Event of Default
provided that any such event which by reason of express provisions in any
Senior Finance Document requires the satisfaction of a condition as to
materiality before it may become an Event of Default shall not be a Default
unless that condition is satisfied.


 


“Dormant Company” means each member of the
Group:


 


(a)                                  which has
been dormant since its incorporation or since the end of its previous financial
year (and for this purpose “dormant” has the meaning given to it in
section 249 AA(4) of the Companies Act 1985); and


 


(b)                                 the value
of whose total gross assets is less than £25,000 (or its equivalent in another
currency or currencies).


 


“Due Diligence Report” means the legal due
diligence report dated 5 September 2003 by Milbank, Tweed, Hadley & McCloy
LLP and Clifford Chance LLP relating to the Acquired Group.


 


10





















 


“EBITDA” has the meaning given to it in
Clause 24.7 (Definitions).


 


“Environment” means the following media:


 


(a)                                  air
(including air within natural or man-made structures, whether above or below
ground);


 


(b)                                 water
(including territorial, coastal and inland waters, water under or within land
and water in drains and sewers); and


 


(c)                                  land
(including land under water).


 


“Environmental Law” means all laws and
regulations of any relevant jurisdiction which:


 


(a)                                  have as a
purpose or effect the protection of, and/or prevention of harm or damage to,
the Environment;


 


(b)                                 provide
remedies or compensation for harm or damage to the Environment; or


 


(c)           relate
to any Hazardous Substance or health and safety matters.


 


“Environmental Licence” means any
Authorisation required at any time under Environmental Law.


 


“Environmental Report” means the
environmental report relating to the Acquired Group prepared by URS
Environmental and addressed to, amongst others, Apax and Permira and capable of
being relied upon by the Senior Finance Parties and the Bridge Finance Parties.


 


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


 


(a)                                  the
applicable Screen Rate; or


 


(b)                                 (if no
Screen Rate is available for the Interest Period of that Loan) the arithmetic
mean of the rates (rounded upwards to 4 decimal places) as supplied to the
Agent at its request quoted by the Reference Banks to leading banks in the
European interbank market,


 


as
of the Specified Time on the Quotation Day for the offering of deposits in euro
for a period comparable to the Interest Period of the relevant Loan.


 


“Event of Default” means any event or
circumstance specified as such in Clause 26 (Events of Default).


 


“Existing Debt” means the Financial
Indebtedness of the Acquired Group existing immediately prior to the Completion
Date including any break costs or prepayment fees in relation to such Financial
Indebtedness.


 


“Existing Share Option Schemes” means the
“Approved Share Option Plan” (Inmarsat Ventures plc Approved Share Purchase
Plan) and the “Executive Share Option Plan” (Inmarsat Ventures plc Share Option
Plan), each as described in the Due Diligence Report.


 


“Facility” or “Facilities” means Facility A, Facility B, Facility C, the
Capex Facility or the Revolving Facility.


 


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


 


11





















 


“Facility A Borrower” means:


 


(a)                                  each
Borrower identified as a Facility A Borrower in Part I of Schedule 1 (The Original Parties); and


 


(b)                                 any
Additional Borrower identified in an Accession Letter as a Borrower under
Facility A,


 


other
than in the case of an Original Borrower, following accession as an Obligor in
accordance with this Agreement.


 


“Facility A Commitment” means:


 


(a)                                  in
relation to an Original Lender, the amount in the Base Currency set opposite
its name under the heading “Facility A Commitment” in Part II of Schedule 1 (The Original Parties) and the amount of
any other Facility A Commitment transferred to it under this Agreement; and


 


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


 


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


 


“Facility A Lender” means:


 


(a)                                  any
Original Facility A Lender; and


 


(b)                                 any bank,
financial institution, trust, fund or other entity which has become a Facility
A Lender in accordance with Clause 27 (Changes
to the Lenders),


 


which
in each case has not ceased to be a Facility A Lender in accordance with this
Agreement.


 


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


 


“Facility A Repayment Dates” means each date
specified in paragraph (a) of Clause 10.1 (Repayment of Facility A Loans) for the payment of a Facility
A Repayment Instalment.


 


“Facility A Repayment Instalment” means each
instalment for repayment of the Facility A Loans specified in paragraph (a) of
Clause 10.1 (Repayment of Facility A Loans).


 


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


 


“Facility B Borrower” means:


 


(a)                                  each
Borrower identified as a Facility B Borrower in Part I of Schedule 1 (The Original Parties); and


 


(b)                                 any
Additional Borrower identified in an Accession Letter as a Borrower under
Facility B,


 


other
than in the case of an Original Borrower, following accession as an Obligor in
accordance with this Agreement.


 


“Facility B Commitment” means:


 


(a)                                  in
relation to an Original Lender, the amount in the Base Currency set opposite
its name under the heading “Facility B Commitment” in Part II of Schedule 1 (The Original Parties)


 


12





















 


and the amount of any other
Facility B Commitment transferred to it under this Agreement; and


 


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


 


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


 


“Facility B Lender” means:


 


(a)                                  any
Original Facility B Lender; and


 


(b)                                 any bank,
financial institution, trust, fund or other entity which has become a Facility
B Lender in accordance with Clause 27 (Changes
to the Lenders),


 


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


 


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


 


“Facility B Repayment Date” means the
Termination Date applicable to Facility B.


 


“Facility B Repayment Instalment” means each
instalment for repayment of the Facility B Loans specified in paragraph (a) of
Clause 10.2 (Repayment of Facility B Loans).


 


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


 


“Facility C Borrower” means:


 


(a)                                  each
Borrower identified as a Facility C Borrower in Part I of Schedule 1 (The Original Parties); and


 


(b)                                 any
Additional Borrower identified in an Accession Letter as a Borrower under
Facility C,


 


other
than in the case of an Original Borrower, following accession as an Obligor in
accordance with this Agreement.


 


“Facility C Commitment” means:


 


(a)                                  in
relation to an Original Lender, the amount in the Base Currency set opposite
its name under the heading “Facility C Commitment” in Part II of Schedule 1 (The Original Parties) and the amount of
any other Facility C Commitment transferred to it under this Agreement; and


 


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


 


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


 


“Facility C Lender” means:


 


(a)                                  any
Original Facility C Lender; and


 


(b)                                 any bank,
financial institution, trust, fund or other entity which has become a Facility
C Lender in accordance with Clause 27 (Changes
to the Lenders),


 


13





















 


which
in each case has not ceased to be a Facility C Lender in accordance with this
Agreement.


 


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


 


“Facility C Repayment Date” means the
Termination Date applicable to Facility C.


 


“Facility C Repayment Instalment” means each
instalment for repayment of the Facility C Loans specified in paragraph (a) of
Clause 10.3 (Repayment of Facility C Loans).


 


“Facility Office” means the office or
offices notified by a Lender to the Agent in writing on or before the date it
becomes a Lender (or, following that date, by not less than 5 Business Days’
written notice) as the office or offices through which it will perform its
obligations under this Agreement.


 


“Fee Letter” means any letter or letters
dated before or on or about the date of this Agreement between, as the case may
be, the Mandated Lead Arrangers and Newco, the Agent and Newco, the Security
Trustee and Newco or the Issuing Bank and Newco setting out any of the fees
referred to in Clause 15 (Fees).


 


“Finance Documents” means the Senior Finance
Documents, the Bridge Facility Finance Documents and/or the High Yield Notes
Finance Documents, as the case may be.


 


“Finance Party” means a Senior Finance
Party, a Hedging Bank, a Bridge Facility Finance Party or a High Yield Notes
Finance Party, as the case may be.


 


“Financial Indebtedness” means (without
double counting) any indebtedness for or in respect of:


 


(a)                                  moneys
borrowed;


 


(b)                                 any amount
raised by acceptance under any acceptance or documentary credit facility;


 


(c)                                  any amount
raised pursuant to any note purchase facility or the issue of bonds (other than
performance bonds and bonds issued by one member of the Group in respect of the
obligations of another member of the Group), notes, debentures, loan stock or
any similar instrument;


 


(d)                                 the amount
of any liability in respect of any lease or hire purchase contract which would,
in accordance with the Applicable Accounting Principles, be treated as a
finance lease to the extent of such treatment;


 


(e)                                  receivables
sold or discounted (other than any receivables to the extent they are sold on a
non-recourse basis);


 


(f)                                    any amount
raised under any other transaction (including any forward sale or purchase
agreement) required by the Applicable Accounting Principles to be shown as a
borrowing in the audited consolidated balance sheet of a company;


 


(g)                                 the net
liability under any derivative transaction entered into in connection with
protection against or benefit from fluctuation in any rate or price (and, when
calculating the indebtedness under any derivative transaction, only the net
amount due and payable shall be taken into account);


 


14





















 


(h)                                 shares
which are expressed to be redeemable before the stated maturity of any Loan;


 


(i)                                     any
counter-indemnity obligation in respect of a guarantee, indemnity, bond,
standby or documentary letter of credit or any other instrument issued by a
bank or financial institution; and


 


(j)                                     the amount
of any liability in respect of any guarantee or indemnity for any of the items
referred to in paragraphs (a) to (i) above,


 


but,
for the avoidance of doubt does not include any liability of the Group in
respect of deferred satellite incentive payments in relation to the I4 Programme.


 


“Financing Case” means the financing case in
relation to the Group, as enlarged by the Acquisition, and prepared by the
Company.


 


“Funds Flow Memorandum” means the funds flow
memorandum in the Agreed Form containing details of the flow of funds for the
Acquisition (including details of amounts payable as consideration for the
Acquisition, the amount of the Acquisition Costs and the refinancing of the
Existing Debt).


 


“GAAP” means:


 


(a)                                  in
relation to the consolidated financial statements of the Group, generally
accepted accounting principles, standards and practices in the United Kingdom;
and


 


(b)                                 in
relation to any member of the Group, generally accepted accounting principles,
standards and practices in its jurisdiction of incorporation.


 


“Group” means the Company and its
Subsidiaries (but excluding the Target and its Subsidiaries prior to the
Completion Date).


 


“Group Structure Chart” means the group
structure chart in the Agreed Form (including details of:


 


(a)                                  Dormant
Companies;


 


(b)                                 any shareholder
of any member of the Group which is not a member of the Group;


 


(c)                                  intra-Group
loans; and


 


(d)                                 the other
information specified in Clause 22.14 (Group
structure)).


 


“Guarantor” means an Original Guarantor or
an Additional Guarantor.


 


“Hazardous Substance” means any waste,
pollutant, contaminant or other substance (including any liquid, solid, gas,
ion, living organism or noise) that may be harmful to human health or other
life or the Environment or a nuisance to any person or that may make the use or
ownership of any affected land or property more costly.


 


“Hedging Bank” means an Approved Hedging
Bank or an Affiliate of an Approved Hedging Bank, or any Lender (or an
Affiliate of a Lender) which provides Permitted Hedging Transactions, which in
each case accedes as a hedging bank to the lntercreditor Agreement.


 


“Hedging Documents” means the documents
entered into between a member of the Group and a Hedging Bank in accordance
with the Hedging Policy (including, without limitation, any hedging of the Bridge
Facility).


 


15





















 


“Hedging Policy” means interest rate hedging
in respect of the interest payable on 662/3 of the Total
Facility A Commitments, the Total Facility B Commitments and the Total Facility
C Commitments for a period of at least 3 years from the date of the first
Utilisation of the Facilities.


 


“High Yield Inter-Company Loan Agreement” means the Original
High Yield Inter-Company Loan Agreement and the Additional High Yield
Inter-Company Loan Agreement.


 


“High Yield Noteholders” means the holders
of the High Yield Notes.


 


“High Yield Notes” means the Original High
Yield Notes and the Additional High Yield Notes.


 


“High Yield Notes Finance Documents” means
the High Yield Notes Indenture, any guarantee or guarantor accession agreement
under the High Yield Notes Indenture, any associated fee and engagement
letters, the High Yield Inter-Company Loan Agreement, the High Yield Notes
Security Documents and any other documents designated as such by the High Yield
Notes Trustee and the Company in each case on terms consistent with the
Intercreditor Agreement.


 


“High Yield Notes Finance Parties” means the
High Yield Notes Trustee, the High Yield Noteholders and the Security Trustee.


 


“High Yield Notes Indenture” means the
indenture to be executed by the High Yield Notes Issuer and the trustee of the
High Yield Notes constituting the High Yield Notes.


 


“High Yield Notes Issuer” means Bondco,
Midco or any Holding Company of Midco.


 


“High Yield Notes Outstandings” means the
aggregate amount outstanding at any time in respect of principal under the High
Yield Notes.


 


“High Yield Notes Security Documents” means
the security documents relating to the Security in favour of the High Yield
Notes Finance Parties over (a) the issued share capital of the Target and (b)
the High Yield Inter-Company Loan Agreement for any of the Liabilities under
the High Yield Notes Finance Documents, provided such security documents are
expressed to be subject to, and are consistent with, the Intercreditor
Agreement.


 


“High Yield Notes Trustee” means the trustee
of the High Yield Notes under the High Yield Notes Indenture.


 


“Holdcos” means each of the Company, Midco,
DDBCo and Newco.


 


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


 


“Information Memorandum” means the document
in the form approved by the Company (acting reasonably) concerning the Group
(as enlarged by the Acquired Group) which, at the Company’s request and on its
behalf, will be prepared in relation to the Facilities and the Acquisition and
distributed by the Bookrunners to selected financial institutions in connection
with the sub-underwriting and syndication of the Facilities.


 


“Information Package” means the Reports and
the Information Memorandum.


 


“Insurance Report” means the insurance
report by AON relating to the Acquired Group.


 


“Intellectual Property Rights” means all
patents, designs, copyrights, topographies, trade marks, service marks, trading
names, domain names, rights in confidential information and


 


16





















 


know-how,
any other intellectual property and any associated or similar rights, and any
interest in any of the foregoing (in each case whether registered or
unregistered and including any related licences and sub-licences of the same,
applications and rights to apply for the same and wherever subsisting).


 


“Intercompany Loan Agreements” means the
separate subordinated loan agreements or subordinated perpetual securities
agreements in each case in the Agreed Form to be entered into between DDBCo and
Midco respectively (as lenders) and Midco and Newco respectively (as borrowers)
pursuant to which the proceeds of issuance of shares in the Company and the
Subordinated Preference Certificates are to be downstreamed by the recipient of
those proceeds to the relevant member(s) of the Group and which are, in each
case, subject to (and consistent with) the Intercreditor Agreement.


 


“lntercreditor Agreement” means the
intercreditor agreement entered into or to be entered into, amongst others,
between the Agent, the Hedging Banks, certain members of the Group, the
Investors (to the extent they are direct or indirect holders of Investor Debt),
the Management (to the extent they are direct or indirect holders of Investor
Debt), the Bridge Facility Agent, the Obligors, the Security Trustee and, after
issue of the High Yield Notes, the trustee of the High Yield Notes (or in the
case of any other refinancing of the Bridge Facility, the equivalent under that
other refinancing) in the Agreed Form.


 


“Interest Period” means, in relation to a
Loan, each period determined in accordance with Clause 13 (Interest Periods) and, in relation to an
Unpaid Sum, each period determined in accordance with Clause 12.3 (Default interest).


 


“Investor Debt” means:


 


(a)                                  the
Subordinated Preference Certificates; and


 


(b)                                 other
unsecured Financial Indebtedness of any Holdco (other than Midco or Newco) to
the Investors and/or the Management subordinated pursuant to the lntercreditor
Agreement to all amounts which may be or become payable to the Finance Parties
under the Finance Documents.


 


“Investor Documents” means the Subordinated
Preference Certificates Instrument, the Subordinated Preference Certificates,
the Shareholders’ Agreement, any related fees letters, the constitutional
documents of each Holdco and any other document designated as such by the Agent
and the Company.


 


“lnvestors” means the Original Investors,
the Management and any assignee or transferee of any interest in the Company
and any assignee or transferee of any interest in the Subordinated Preference
Certificates, in each case where such assignee or transferee has become a party
to the Shareholders’ Agreement and, if a holder of Investor Debt, acceded as an
Investor to the lntercreditor Agreement.


 


“I4 Programme” means the programme for the
development, construction and launch of the fleet of I4 Satellites (and, in the
event of failure, their replacements) and the provision of ‘Broadband Global
Area Network’ and ‘Regional-Broadband Global Area Network’ services.


 


“I2 Satellite” means an Inmarsat-2
satellite.


 


17





















 


“I3 Satellite” means an Inmarsat-3
satellite.


 


“I4 Satellite” means an Inmarsat-4 satellite.


 


“Joint Venture” means all joint venture
entities, whether a company, unincorporated firm, undertaking, joint venture,
association, partnership or other entity, in which any member of the Group has
an interest from time to time.


 


“Key Company” means each Holdco, the High
Yield Notes Issuer and each Obligor.


 


“Lender” means a Facility A Lender, a
Facility B Lender, a Facility C Lender, a Capex Facility Lender or a Revolving
Facility Lender.


 


“LESO” means a contractual counterparty of
the Group under the land earth station operator agreement dated 15 April 1999
and any replacement (or replacements) or extension thereof.


 


“Letter of Credit” means a letter of credit,
substantially in the form set out in Schedule 9 (Form of Letter of Credit) or in any other form requested by
a Borrower and agreed by the Agent (with the prior consent of the Majority
Revolving Lenders) and the Issuing Bank.


 


“Letter of Credit and Bank Guarantee Limit”
means $15,000,000 or, if less, the Total Revolving Facility Commitments.


 


“Liabilities” of a Chargor means all present
and future moneys, debts and liabilities due, owing or incurred by it to any
Finance Party under or in connection with any Finance Document (in each case,
whether alone or jointly, or jointly and severally, with any other person,
whether actually or contingently and whether as principal, surety or
otherwise).


 


“LIBOR” means, in relation to any Loan:


 


(a)                                  the
applicable Screen Rate; or


 


(b)                                 (if no
Screen Rate is available for the currency or Interest Period of that Loan) the
arithmetic mean of the rates (rounded upwards to 4 decimal places) as supplied
to the Agent at its request quoted by the Reference Banks to leading banks in
the London interbank market,


 


as
of the Specified Time on the Quotation Day for the offering of deposits in the
currency of that Loan and for a period comparable to the Interest Period for
that Loan.


 


“Loan” means a Facility A Loan, a Facility B
Loan, a Facility C Loan, a Capex Facility Loan or a Revolving Facility Loan.


 


“Majority Capex Facility Lenders” means, at
any time, a Capex Facility Lender or Capex Facility Lenders whose Available
Commitment under the Capex Facility and participations in the Capex Facility
Loans then outstanding aggregate more than 662/3 per
cent. of the Available Facility and the Capex Facility Loan(s) then
outstanding.


 


“Majority Facility A Lenders” means, at any
time, a Facility A Lender or Facility A Lenders whose Available Commitment
under Facility A and participations in the Facility A Loans then outstanding
aggregate more than 662/3 per cent. of the Available
Facility and the Facility A Loan(s) then outstanding.


 


18


















 


“Majority Facility
B Lenders” means, at any time, a Facility B Lender or Facility B
Lenders whose Available Commitment under Facility B
and participations in the Facility B Loans then outstanding aggregate more than
662/3 per cent. of the
Available Facility and the Facility B Loan(s) then outstanding.


 


“Majority Facility
C Lenders” means, at any time, a Facility C Lender or Facility C
Lenders whose Available Commitment under Facility C and participations in the
Facility C Loans then outstanding aggregate more than 662/3 per
cent. of the Available Facility and the Facility C
Loan(s) then outstanding.


 


“Majority Lenders”
means, at any time, a Lender or Lenders whose Available Commitments and
participations in the Utilisations then outstanding aggregate more than 662/3
per cent of the Available Commitments and Utilisations then outstanding.
For the purpose of this definition, the provisions of Clause 9.5 (Adjustments to Revolving Facility Commitment) shall not apply.


 


“Majority
Revolving Lenders” means, at any time, a Revolving Facility Lender
or Revolving Facility Lenders whose Available
Commitment under the Revolving Facility and participations in the Revolving
Facility Utilisation(s) then outstanding aggregate more than 662/3 per
cent. of the Available Facility and the Revolving
Facility Utilisation(s) then outstanding. For the purpose of this definition,
the provisions of Clause 9.5 (Adjustments to
Revolving Facility Commitment) shall not apply.


 


“Management”
means the members of the management of the Group who,
directly or indirectly, hold shares in the Company or Subordinated Preference
Certificates.


 


“Mandatory
Cancellation Event” means any event specified in paragraph (a) of
Clause 11.3 (Mandatory cancellation).


 


“Mandatory Cost”
means the percentage rate per annum calculated by the Agent in accordance with Schedule 4
(Mandatory Cost formulae).


 


“Margin”
means:


 


(a)                                  in relation to
Facility A, 2.50 per cent. per annum;


 


(b)                                 in relation to
Facility B, 3.00 per cent. per annum;


 


(c)                                  in relation to
Facility C, 3.50 per cent. per annum;


 


(d)                                 in relation to the
Capex Facility, 2.50 per cent. per annum; and


 


(e)                                  in relation to the
Revolving Facility, 2.50 per cent. per annum,


 


subject, in relation to Facility A, the
Capex Facility and the Revolving Facility, to adjustment in accordance with
Clause 12.5 (Adjustment of Margin).


 


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


 


(a)                                  the consolidated
financial condition, assets or business of the Group taken as a whole;


 


(b)                                 the ability of the
Obligors taken as a whole to perform and comply with their payment obligations
under any Senior Finance Document or the covenants contained in Clause 24 (Financial Covenants);


 


19





















 


(c)                                  subject to the
Reservations, the validity or legality of any Senior Finance Documents which
would materially and adversely affect the interest of the Lenders; or


 


(d)                                 subject to the
Reservations, the validity or legality of any security expressed to be created
pursuant to any Security Document which would materially and adversely affect
the interests of the Lenders.


 


“Material Contract”
means:


 


(a)                                  the contract(s)
referred to in the definition of LESO;


 


(b)                                 the I4 Satellite
construction and launch contracts; and


 


(c)                                  the lease of transponder
capacity on the Thuraya 1 and Thuraya 2 satellites.


 


“Material
Subsidiary” means any Subsidiary of the Group from time to time
whose (i) turnover or (ii) Subsidiary EBITDA then equals or exceeds 5 per cent.
of the consolidated turnover or EBITDA respectively of
the Group.


 


For this purpose:


 


(a)                                  the (i) turnover or
(ii) Subsidiary EBITDA of a Subsidiary of the Group will be determined from its
financial statements upon which the latest audited financial statements of the
Group have been based, and in relation to the list of Material Subsidiaries
delivered as an initial condition precedent under Clause 4.1 (Initial conditions precedent) will be
determined from its latest audited financial statements;


 


(b)                                 if a company
becomes a member of the Group after the Completion Date (including members of
the Acquired Group for the purposes of establishing the Acquired Group Members
for paragraph (a) of Clause 25.23 (Security
and guarantees)), the (i) turnover or (ii) Subsidiary EBITDA of
that company will be determined as set out in its latest audited financial
statements as at the date it becomes a member of the Group and based on the
most recently available financial information of the Group, adjusted to give
pro forma effect to the acquisition of such company;


 


(c)                                  in relation to a
member of the Group which has acquired or disposed of a company or business the
(i) turnover or (ii) EBITDA or Subsidiary EBITDA of that member of the
Group (as applicable) will be determined from its latest audited financial
statements adjusted to reflect such acquisitions or disposals; and


 


(d)                                 if a Material
Subsidiary disposes of all or substantially all of its assets to another
Subsidiary of the Group, it will immediately cease to be a Material Subsidiary
and the other Subsidiary (if it is not already) will immediately become a
Material Subsidiary. The subsequent financial statements of those Subsidiaries
and the Group will be used to determine whether those Subsidiaries are Material
Subsidiaries or not.


 


If there is a dispute as to whether or not a company
is a Material Subsidiary, a certificate of the auditors of the Company will be,
in the absence of manifest error, conclusive.


 


20





















 


“Midco”
means Inmarsat Group Limited (formerly called Grapedrive Limited), a company
incorporated in England and Wales with registered number 4886115.


 


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


 


(a)                                  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; and


 


(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.


 


The above rules will only apply to the last Month of
any period.


 


“Obligor”
means a Borrower or a Guarantor.


 


“Optional Currency”
means a currency (other than the Base Currency) which complies with the
conditions set out in Clause 4.3 (Conditions
relating to Optional Currencies).


 


“Offer Circular”
means the circular to be sent to the shareholders of the Target relating to the
Acquisition which, among other things, satisfies the Target’s obligations under
section 426 of the Companies Act 1985.


 


“Original Capex
Facility Lender” means a Lender listed in Part II or Part III of Schedule 1
(The Original Parties) as having
a Capex Facility Commitment.


 


“Original Facility
A Lender” means a Lender listed in Part II or Part Ill of Schedule 1
(The Original Parties) as having
a Facility A Commitment.


 


“Original Facility
B Lender” means a Lender listed in Part II or Part Ill of Schedule 1
(The Original Parties) as having
a Facility B Commitment.


 


“Original Facility
C Lender” means a Lender listed in Part II or Part Ill of Schedule 1
(The Original Parties) as having
a Facility C Commitment.


 


“Original
Financial Statements” means the audited consolidated financial
statements of the Acquired Group for the financial year ended 31 December 2002.


 


“Original High
Yield Inter-Company Loan Agreement” means the agreement dated 3 February 2004
between the High Yield Notes Issuer and Newco on terms consistent with the
Intercreditor Agreement between the High Yield Notes Issuer and Newco pursuant
to which the High Yield Notes Issuer has made a loan, subordinated to the
Senior Finance Documents, to Newco on (or around) the date on which the
Original High Yield Notes were issued for the purpose of funding Newco’s
prepayment of the Bridge Facility.


 


“Original High
Yield Notes” means the high yield notes issued by the High Yield
Notes Issuer for the purpose of refinancing amounts outstanding under the
Bridge Finance Documents, together with fees and expenses associated therewith,
in each case, in accordance with Clause 6 (High
Yield Notes Debt) of the Intercreditor Agreement, up to a cap
(including such fees and expenses) of $375,000,000.


 


21





















 


“Original
Investors” means:


 


(a)                                  in relation to
Permira:


 


(i)                                     Permira Europe III
L.P.1, Permira Europe III L.P.2 and Permira Europe III Co-Investment Scheme (in
each case with Permira Europe III Nominees Limited as nominee) and Permira
Investments Limited; and


 


(ii)                                  any funds or limited
partnerships managed or advised by Permira;


 


(b)                                 in relation to Apax:


 


(i)                                     Apax Europe V-A,
L.P., Apax Europe V-B, L.P. Apax Europe V-C GmbH & Co K.G., Apax Europe V-D,
L.P., Apax Europe V-E, L.P., Apax Europe V-F, C.V., Apax Europe V-G, C.V., Apax
Europe V-1, L.P., and Apax Europe V-2, L.P.; and


 


(ii)                                  any funds or limited
partnerships managed or advised by Apax; and


 


(c)                                  the Re-Investors.


 


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


 


“Original
Revolving Facility Lender” means a Lender listed in Part II or Part
Ill of Schedule 1 (The Original Parties)
as having a Revolving Facility Commitment.


 


“Outstanding
Liability Amount” in relation to any Letter of Credit or Bank
Guarantee at any time means the amount stated therein to be the maximum amount
for which the Issuing Bank or the Lenders (as the case may be) could be
actually and/or contingently liable thereunder, less the aggregate of:


 


(a)                                  all amounts thereof
repaid or prepaid in accordance with the terms of this Agreement; and


 


(b)                                 all amounts (if any)
actually paid out by the Issuing Bank (or the Lenders) thereunder for which the
Issuing Bank or the Lenders (as the case may be) have been reimbursed by the
Obligors (whether or not out of the proceeds of a Utilisation).


 


“Overfund Deduction” means an amount of up to $7,000,000.


 


“Overfunding” means, at any time, up to $244,000,000 of the
funds raised by the Group from the Term Facilities, the Subordinated Preference
Certificates, the subscription for shares in the Company and from cash of the
Acquired Group as at the Completion Date which is not used (or to be used) to
fund the consideration payable to shareholders of the Target pursuant to the
Scheme of Arrangement, the refinancing of the Existing Debt or the Acquisition
Costs and which is shown as an overfunding in the Funds Flow Memorandum less any increase (or plus any
decrease) in Working Capital from the Completion Date until the end of the most
recent Accounting Quarter provided that, if there is a decrease in Working
Capital, an amount equal to that decrease is paid in cash into the Overfunding
Account by the last day of that Accounting Quarter.


 


“Overfunding Account” means the cash collateral account (or
accounts) in the name of Newco into which the Overfunding is to be paid (or has
been paid) pursuant to Clause 25.37 (Overfunding).


 


“Panel”
means the Panel on Takeovers and Mergers.


 


22





















 


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


 


“Party”
means a party to this Agreement.


 


“Perfection
Requirements” means the making or the procuring of the appropriate
registrations, filings, stampings and/or notifications of the Security
Documents as specifically contemplated by any legal opinion delivered pursuant
to Clause 4 (Conditions of Utilisation)
or Clause 28 (Changes to the Obligors).


 


“Permira”
means Permira Advisers Limited.


 


“Permitted
Acquisition” means:


 


(a)                                  the Acquisition;


 


(b)                                 any Permitted Merger;


 


(c)                                  any Permitted Joint
Venture;


 


(d)                                 any acquisition of shares
by way of consideration for a Permitted Disposal (other than a disposal set out
in paragraph (c) of that definition);


 


(e)                                  the acquisition of
shares in any joint ventures referred to in the definition of Permitted Joint
Venture;


 


(f)                                    any acquisition by
a member of the Group other than the Company, DDBCo, the High Yield Notes
Issuer or Midco of a profit making, cash generative similar business or profit
making, cash generative limited liability company incorporated in the United
States of America or the European Union where the consideration paid therefor,
or the liabilities taken on in respect thereof, do not exceed $15,000,000 per
annum plus, where the fixed assets of the business acquired would be treated as
Capital Expenditure if they had been acquired directly by the relevant member
of the Group rather than by the acquisition of shares, the amount of any
Capital Expenditure which the Group is permitted to incur under this Agreement
during the period in which such acquisition is made provided that in each case:


 


(i)                                     no Event of Default
is continuing at the time such acquisition is made; and


 


(ii)                                  the making of such
acquisition would not reasonably be expected, in the 6 months immediately
following the making of such acquisition, to result in a breach of Clause 24 (Financial Covenants) and two directors of
Newco (including the Chief Executive Officer and/or the Chief Financial
Officer) issue a certificate to the Agent to that effect;


 


(g)                                 the acquisition of
Airia Limited pursuant to an exercise by APR Limited of its rights to put the
shares in that company to the Target as described in the Due Diligence Report;


 


(h)                                 the acquisition of
shares in the Target from persons exercising outstanding options under the
Existing Share Option Schemes as contemplated by the Offer Circular; and


 


23





















 


(i)                                     the incorporation of,
and subscription for 49,999 shares of £1 each by DDBCo and 1 share of £1 by the
Company (without any premium being paid therefor) in, the Senior Discount Notes
Issuer.


 


“Permitted
Disposal” means the sale, lease, transfer or other disposal:


 


(a)                                  of assets subject
only to a floating charge under the Security Documents and made in the ordinary
course of trading of the disposing entity;


 


(b)                                 of assets of any
member of the Group which are seized, expropriated or acquired by compulsory
purchase by or by the order of any central or local government authority;


 


(c)                                  of cash or Cash
Equivalent Investments for any other purpose not prohibited under this
Agreement;


 


(d)                                 constituting the creation of
any Permitted Security;


 


(e)                                  of assets to a Joint
Venture that is permitted under the definition of Permitted Joint Venture;


 


(f)                                    of assets (other
than material Intellectual Property Rights, real property, shares or satellites)
in exchange or replacement for other assets which are, in the reasonable
opinion of the person effecting the acquisition, comparable or superior as to
the type, value and quality of assets being disposed of;


 


(g)                                 being sales, leases,
transfers or disposals of:


 


(i)                                     any surplus, obsolete
or worn-out assets (excluding real estate or satellites);


 


(ii)                                  any redundant real
estate in the ordinary course of the Group’s trading;


 


(iii)                               real estate by way of
the granting of leases or licences;


 


in each case which, in the reasonable
opinion of the member of the Group making the sale, transfer or disposal, is
not required by any member of the Group for the efficient operation of the
business of the Group and does not interfere in any material respect with the ordinary
conduct of the business of any member of the Group;


 


(h)                                 of assets by an
Obligor to another Obligor;


 


(i)                                     of assets by a member
of the Group which is not an Obligor to another member of the Group which is
not an Obligor;


 


(j)                                     of assets by a member
of the Group which is not an Obligor to an Obligor;


 


(k)                                  of assets by an
Obligor to a member of the Group which is not an Obligor provided that the
aggregate of the consideration for such assets when aggregated with the
consideration for any other assets sold by an Obligor to a member of the Group
which is not an Obligor does not, in any financial year of Newco, when
aggregated with:


 


(i)                                     the amount of any
loans outstanding at that time which are permitted under paragraph (l) of
Permitted Loans; and


 


(ii)                                  the amount of any
guarantee or indemnities outstanding at that time which are permitted under
paragraph (n) of Permitted Guarantees,


 


24





















 


exceed $5,000,000 or its
equivalent;


 


(l)                                     a sale and leaseback
of the City Road Property on terms approved by the Majority Lenders (acting
reasonably);


 


(m)                               of shares in, and
assets of, Airia Limited and Airia Services Limited to APR Limited in
settlement of the Airia Dispute as described in the Due Diligence Report; or


 


(n)                                 where consideration
receivable for any other sale, lease, transfer or other disposal, other than
any permitted under the other paragraphs in this definition, does not exceed
$10,000,000 or its equivalent in any financial year of the Company.


 


“Permitted Financial Indebtedness” means:


 


(a)                                  Financial
Indebtedness under the Finance Documents (as construed, for the avoidance of
doubt, in accordance with Clause 1.4 (Alternative
debt instruments));


 


(b)                                 Financial
Indebtedness in respect of the Investor Debt;


 


(c)                                  Financial
Indebtedness which is referred to in paragraphs (b), (c), (d), (e), (h), (i) or
(l) of the definition of Permitted Loan or which is referred to in paragraphs
(a), (b), (c), (d), (e), (f), (g), (h), (j), (k), (m), (n) and (p) of the
definition of Permitted Guarantees;


 


(d)                                 Financial
Indebtedness under a Permitted Hedging Transaction;


 


(e)                                  until 30 days after the
Completion Date, any Existing Debt which is not to be refinanced using the Term
Facilities;


 


(f)                                    any Existing Debt the
retention of which has been approved by the Majority Lenders;


 


(g)                                 Financial
Indebtedness which the Funds Flow Memorandum shows is to be refinanced using
the Term Facilities until the earlier of:


 


(i)                                     the first to occur
of (A) the date falling 30 days after the Completion Date and (B) the later of
(i) the date falling 15 days after the Completion Date and (ii) the last day of
the interest period prevailing at the Completion Date for such Financial
Indebtedness; and


 


(ii)                                  the date on which
repayment of such Financial Indebtedness is demanded by the relevant lender of
that Existing Debt;


 


(h)                                 Financial
Indebtedness under a Permitted Joint Venture up to the limit specified in that
definition;


 


(i)                                     unsecured Financial
Indebtedness of any member of the Group, to the extent covered by any Letter of
Credit or Bank Guarantee issued under this Agreement or by a guarantee, bond or
letter of credit issued under any Ancillary Facility;


 


(j)                                     Financial
Indebtedness under a finance or capital lease the aggregate principal amount of
which when aggregated with the Financial Indebtedness under each other finance
or capital lease entered into by a member of the Group does not exceed
$5,000,000 (or its equivalent in another currency or currencies);


 


(k)                                  Financial
Indebtedness under any finance or capital lease of the City Road Property
entered into by the Group under paragraph (l) of the definition of Permitted
Disposal;


 


25





















 


(l)                                     Financial
Indebtedness (other than that falling within paragraph (g) of the definition of
Financial Indebtedness) not owed to a Restricted Person and not falling within
paragraphs (a) to (k) above, the aggregate outstanding principal amount of
which does not exceed $5,000,000 or its equivalent in another currency or
currencies; and


 


(m)                               Financial
Indebtedness of the Senior Discount Notes Issuer under the Senior Discount
Notes and of DDBCo under the Senior Discount Notes On-Loan where the terms of
such Financial Indebtedness have been approved in advance by the Majority
Lenders.


 


“Permitted Guarantees” means:


 


(a)                                  guarantees and
indemnities granted under the Finance Documents (as construed, for the
avoidance of doubt, in accordance with Clause 1.4 (Alternative debt instruments)) and indemnities granted by a
Holdco under the Investor Documents where such indemnities are customarily
granted in documents of the type of the Investor Documents;


 


(b)                                 trade credits,
guarantees, indemnities, bonds and letters of credit granted, given or issued
by a member of the Group on arm’s length terms and in the ordinary course of
its trading, not in respect of Financial Indebtedness, nor to or for the
benefit of, nor in respect of liabilities or obligations of, a Restricted
Person;


 


(c)                                  guarantees, bonds and
indemnities issued by a member of the Group in respect of the Financial
Indebtedness of another member of the Group:


 


(i)                                     prior to the
Completion Date which, when aggregated with loans referred to in paragraph (b)(i) of the definition of Permitted Loans (A) are less than
$10,000,000 or (B) to the extent they are greater than $10,000,000 have either
been consented to by the Majority Lenders or have been subordinated, within 15
days of the Completion Date, to the Facilities and the Bridge Facility under
the Intercreditor Agreement; or


 


(ii)                                  expressly referred to in the
Funds Flow Memorandum;


 


(d)                                 guarantees, bonds
and indemnities issued by an Obligor in respect of the Financial Indebtedness
of another Obligor;


 


(e)                                  guarantees, bonds and
indemnities issued by a member of the Group which is not an Obligor in respect
of the Financial Indebtedness of another member of the Group which is not an
Obligor;


 


(f)                                    guarantees, bonds and
indemnities issued by a member of the Group which is not an Obligor in respect
of the Financial Indebtedness of an Obligor;


 


(g)                                 guarantees, bonds and
indemnities under or in respect of a Permitted Joint Venture up to the limit
specified in that definition;


 


(h)                                 any customary
guarantee, bond or indemnity to a purchaser in relation to a Permitted
Disposal;


 


(i)                                     any guarantee, bond or
indemnity permitted under paragraph (i) of Permitted Financial Indebtedness;


 


26





















 


(j)                                     guarantees or indemnities
entered into by a member of the Group in favour of a bank in the ordinary
course of its banking arrangements for the purpose of netting debit and credit
balances of any member of the Group;


 


(k)                                  guarantees or
indemnities entered into by a member of the Group in relation to Permitted
Hedging Transactions (other than under or in respect of any Hedging Documents);


 


(l)                                     any guarantee or
indemnity given by a member of the Group to a landlord in respect of the
obligations of an immediate assignee or transferee of a lease as a result of
the assignment or transfer of such lease;


 


(m)                               any unsecured bond,
guarantee or indemnity in relation to the obligations of any member of the
Group to pay rent under a lease of real property;


 


(n)                                 any guarantee or
indemnity issued by an Obligor in relation to the Financial Indebtedness of a
member of the Group which is not an Obligor provided that the aggregate
principal amount guaranteed or indemnified at any time does not, when
aggregated with:


 


(i)                                     the amount of any
loans outstanding at that time which are permitted under paragraph (l) of
Permitted Loans; and


 


(ii)                                  the aggregate
consideration payable for the sale, lease, transfer or other disposal of assets
permitted to be sold, leased, transferred or otherwise disposed of under
paragraph (k) of Permitted Disposals in the then current financial year of
Newco,


 


exceed $5,000,000 or its equivalent in
another currency or currencies at any time; or


 


(o)                                 any guarantee or
indemnity that is not of the obligations of a Restricted Person or not falling
within the other paragraphs in this definition in respect of which the
aggregate principal amount guaranteed or indemnified at any time does not, when
aggregated with the amount of any loans outstanding at that time which are
permitted under paragraph (m) of the definition of Permitted Loan, at any time
exceed $5,000,000 (or its equivalent); or


 


(p)                                 the Senior Discount
Notes Guarantee.


 


“Permitted Hedging Transaction” means:


 


(a)                                  the hedging
transactions in accordance with the Hedging Policy and any replacements or
extensions (on substantially similar terms and in respect of similar amounts);


 


(b)                                 any hedging
transactions in accordance with the Bridge Facility Finance Documents; or


 


(c)                                  any transactions to
hedge actual or projected interest or forward exposures (including any spot
and/or forward exchange contracts) arising in the ordinary course of trading of
a member of the Group and not for speculative purposes.


 


“Permitted Joint
Venture” means existing Joint Ventures and any other Joint Ventures
engaged in a similar business, the aggregate amount of all investments in
which, in the case of a loan, guarantee or indemnity, the disposal of any asset
to, or the taking on of any material liability outside the ordinary course of
its trading does not exceed $15,000,000 at any time (or its


 


27





















 


equivalent in another currency or currencies),
provided that no Event of Default has occurred and is continuing at the time of
the investment in such Joint Venture or would occur as a result of investment
in that Joint Venture and the Joint Venture vehicle is a limited liability
company incorporated in the United States of America or the European Union. For
the avoidance of doubt, nothing in this Agreement shall be construed so as to
restrict the Group’s rights to make the payments up to an aggregate amount of $10,000,000
required under the settlement agreement relating to the Airia Dispute.


 


“Permitted Loan”
means:


 


(a)                                  trade credit extended by
any member of the Group to its customers on normal commercial terms and in the
ordinary course of its trading activities;


 


(b)                                 a loan made by a
member of the Group to another member of the Group (other than a Restricted
Person):


 


(i)                                     prior to the
Completion Date which, when aggregated with guarantees, bonds and indemnities
referred to in paragraph (c) (i) of the definition of Permitted Guarantees (A)
are less than $10,000,000 or (B) to the extent that they are greater than
$10,000,000 have either been consented to by the Majority Lenders or have been
subordinated, within 15 days of the Completion Date, to the Facilities and the
Bridge Facility under the Intercreditor Agreement; or


 


(ii)                                  expressly referred to in the
Funds Flow Memorandum or the Group Structure Chart;


 


(c)                                  a loan made by an
Obligor to another Obligor;


 


(d)                                 a loan made by a
member of the Group which is not an Obligor to another member of the Group
which is not an Obligor;


 


(e)                                  a loan made by a
member of the Group which is not an Obligor to an Obligor where the aggregate
of such loans does not exceed $10,000,000 or, to the extent the aggregate of
such loans does exceed $10,000,000, where those loans have either been
consented to by the Majority Lenders or have been subordinated to the
Facilities and the Bridge Facility under the Intercreditor Agreement;


 


(f)                                    loans made by
members of the Group to a Permitted Joint Venture up to the limit specified in
that definition;


 


(g)                                 a loan by a member
of the Group in the ordinary course of business to an employee or director of
any member of the Group if the amount of that loan, when aggregated with the
outstanding amount of all other such loans under this paragraph, does not
exceed $2,000,000 (or its equivalent) at any time;


 


(h)                                 a loan made under
the High Yield Inter Company Loan Agreement or the Intercompany Loan
Agreements;


 


(i)                                     any loan made by a
member of the Group to another member of the Group for the purpose of financing
any Permitted Payments;


 


28





















 


(j)                                     a credit balance on
an account of a member of the Group with a bank or financial institution;


 


(k)                                  any loan arising on a Permitted
Disposal;


 


(l)                                     a loan made by an
Obligor to another member of the Group which is not an Obligor provided that
the aggregate principal amount of all such loans outstanding at any time does
not, when aggregated with:


 


(i)                                     the amount of any
guarantees or indemnities outstanding at that time which are permitted under
paragraph (n) of Permitted Guarantees; and


 


(ii)                                  the aggregate
consideration payable from the sale, lease, transfer or other disposal of
assets permitted to be sold, leased, transferred or otherwise disposed of under
paragraph (k) of Permitted Disposals in the then current financial year of
Newco,


 


exceed $5,000,000 or its equivalent in
another currency or currencies;


 


(m)                               a loan not made to
a Restricted Person or not falling within (a) to (l) above which does not at
any time, when aggregated with guarantee and indemnities permitted under
paragraph (o) of Permitted Guarantees, exceed $5,000,000 or its equivalent in
another currency or currencies; or


 


(n)                                 the Senior Discount
Notes On-Loan.


 


“Permitted Merger” means:


 


(a)                                  an acquisition by way
of merger which is a Permitted Acquisition;


 


(b)                                 any amalgamation,
demerger, merger, consolidation or corporate reconstruction on a solvent basis
of a member of the Group where all of the business and assets of that member
remain within the Group provided that:


 


(i)                                     if that member of the
Group was an Obligor immediately prior to such reorganisation being
implemented, all of the business and assets of that member are retained by one
or more other Obligors;


 


(ii)                                  if that member of the
Group is not an Obligor, so long as any assets distributed as a result of such
reorganisation are distributed to other members of the Group,


 


and, in each case:


 


(A)                              the surviving entity
of any such reorganisation is liable for the obligations of the member of the
Group it has merged with to the same extent as that member of the Group;


 


(B)                                the surviving entity
is incorporated in the same jurisdiction as that member of the Group; and


 


(C)                                the Agent and the
Security Trustee are given 30 Business Days’ notice by Newco and they either:


 


(aa)                            confirm to Newco that they are
satisfied (acting reasonably), that such reorganisation will not materially and
adversely affect any Security created


 


29





















 


in favour of the Security Trustee under the Security
Documents (but excluding any Security over the issued share capital of an
Obligor which is transferred to another Obligor provided that such shares
become subject to Security created on substantially the same terms as under the
Security Document under which Security was previously created in favour of the
Security Trustee); or


 


(bb)                          if the relevant previous entity had
granted a Debenture 1 or Debenture 2, require the surviving entity to accede to
Debenture 2 or grant a debenture substantially in the form of Debenture 2 as a
condition precedent to such amalgamation, demerger, merger, consolidation or
corporate reconstruction.


 


“Permitted Payment”
means:


 


(a)                                  any payment, repayment
or prepayment under any Finance Document (as construed, for the avoidance of
doubt, in accordance with Clause 1.4 (Alternative
debt instrument)) permitted by
the Intercreditor Agreement;


 


(b)                                 the payment of
reasonable out of pocket expenses of the Investors or any director of the
Company;


 


(c)                                  the payment of initial
financial arrangement and other fees payable to the Investors in accordance
with the Funds Flow Memorandum;


 


(d)                                 payments to any of
the Investors (not constituting part of any management fee, royalty fee or
similar fee or other investment return) for corporate finance, M&A and
transaction advice actually provided to the Group on bona fide arms’ length
commercial terms;


 


(e)                                  the consideration
payable for the re-purchase of shares in Newco or the Company from any former
director or employee of the Group following termination of their directorship
or employment, provided that the maximum amount paid does not, exceed the
higher of the amount determined to be paid in relation to such termination of
directorship or employment under either the Investor Documents or the amount
payable by law in relation to such termination of directorship or employment;


 


(f)                                    after the Trigger Date,
cash payments in relation to Sponsor Equity which accrue (or have accrued)
after the Trigger Date provided that:


 


(A)                              at the time of each
such payment the ratio of Total Net Debt to EBITDA (calculated by reference to
that ratio as shown in the most recent Compliance Certificate delivered to the
Agent adjusted to reflect the making of the relevant payment of interest) is
less than 2.25:1;


 


(B)                                the making of each
such payment would not reasonably be expected, in the 6 months immediately
following the making of such payment, to result in a breach of Clause 24 (Financial Covenants) and the directors of
Newco issue a certificate to the Agent to that effect;


 


(C)                                at the time of each
such payment no Event of Default is continuing; and


 


(D)                               each such payment is
made from Retained Cash;


 


30





















 


(g)                                 provided that no
Event of Default is continuing, payment of the Monitoring Fee (as that term is
defined in the Shareholders’ Agreement) in an amount of $500,000 per annum plus
VAT thereon (which amount may increase in accordance with the Shareholders’
Agreement provided that the annual percentage increase of that amount shall
not, in any year, exceed the average percentage by which the salaries of the
executive directors of the Company have increased in that year);


 


(h)                                 any fees paid to a
non-executive director at a level to be agreed with the Majority Lender; and


 


(i)                                     the payment of Tax and
of properly incurred legal or audit fees by the High Yield Note Issuer, the
Senior Discount Notes Issuer or any Holdco;


 


(j)                                     payments made in
consideration of the acquisition of shares in the Target from persons
exercising outstanding options under any Existing Share Option Schemes as
contemplated by the Offer Circular;


 


(k)                                  the payment of
salaries at market rates to executive directors in accordance with the
employment contracts of such executive directors;


 


(l)                                     the redemption of up
to $295,000,000 of Subordinated Preference Certificates from the proceeds of
the Senior Discount Notes; and


 


(m)                               after 15 November 2008,
any cash payment by Midco and Newco under the Intercompany Loan Agreements in
such amount (but in no greater amount) as is necessary to fund cash payments of
interest due from the Senior Discount Notes Issuer on the Senior Discount Notes
provided that:


 


(i)                                     no such payment may
be made earlier than one Business Day prior to the due date of the relevant
interest payment on the Senior Discount Notes which such payment under the
Intercompany Loan Agreements is intended to fund; and


 


(ii)                                  no such payment may
be made if a Default is continuing or if a Default could reasonably be expected
to result from the making of such payment.


 


“Permitted
Security” means:


 


(a)                                  any lien arising by
operation of law and in the ordinary course of trading;


 


(b)                                 any retention of title
arrangements and rights of set-off arising in the ordinary course of trading
with suppliers of goods to any member of the Group;


 


(c)                                  any Security or Quasi
Security created pursuant to any Finance Document;


 


(d)                                 any netting or
set-off arrangement entered into under a Permitted Hedging Transaction where
the obligations of the parties are calculated by reference to net exposure
under that Permitted Hedging Transaction;


 


(e)                                  any netting or
set-off arrangement over cash balances held with banks or financial
institutions permitted under Clause 25.21 (Bank
Accounts) entered into by any member of the Group in the ordinary
course of its banking arrangements for the purpose of netting debit or credit
balances;


 


31





















 


(f)                                    any Security or Quasi
Security over or affecting any asset acquired by a member of the Group or over
or affecting any asset of a company acquired by a member of the Group after the
date of this Agreement if:


 


(i)                                     such Security or Quasi
Security was not created in contemplation of the acquisition of that asset, or
that company (as appropriate), by a member of the Group;


 


(ii)                                  the principal amount
secured has not been increased in contemplation of or since the acquisition of
that asset, or that company (as appropriate), by a member of the Group; and


 


(iii)                               such Security or Quasi
Security is irrevocably released and discharged within three Months of the date
of acquisition of that asset, or that company (as appropriate);


 


(g)                                 any Security or Quasi
Security arising under any finance or capital leases which are permitted under
this Agreement;


 


(h)                                 any Security or
Quasi Security over goods and documents of title to goods arising in the
ordinary course of guarantee, bond or letter of credit transactions under an
Ancillary Facility, Letters of Credit or Bank Guarantees under the Revolving
Facility or other Permitted Financial Indebtedness;


 


(i)                                     any Security or Quasi
Security arising under an order, an attachment, an injunction or other similar
legal process restraining the disposal of an asset;


 


(j)                                     any Security or
Quasi Security granted by any member of the Group under an escrow agreement in
respect of any part of the sale proceeds of any asset permitted to be sold
under this Agreement;


 


(k)                                  any Quasi Security
securing Financial Indebtedness in relation to any Permitted Hedging Transaction;
and


 


(l)                                     Quasi Security
arising as a result of a disposal set out in paragraph (l) of the definition of
Permitted Disposal;


 


(m)                               any Security or
Quasi Security securing indebtedness the principal amount of which, when
aggregated with the outstanding principal amount of any other indebtedness
which has the benefit of Security or Quasi Security given by any member of the
Group other than any permitted under the paragraphs set out above in this
definition, does not exceed $2,000,000 (or its equivalent in another currency
or currencies);


 


(n)                                 the pledge over the
Senior Discount Notes On-Loan to be given by the Senior Discount Notes Issuer
in favour of the trustee of the Senior Discount Notes (for the benefit of
itself and the other Senior Discount Notes Finance Parties) (the “Senior Discount Notes On-Loan Pledge”);


 


(o)                                 the first ranking
assignment of the loan made between DDBCo and Midco under one of the
Intercompany Loan Agreements given by DDBCo in favour of the trustee of the
Senior Discount Notes (for the benefit of itself and the other Senior Discount Notes


 


32





















 


Finance Parties) (the “Senior Discount Notes First Ranking Intercompany
Assignment”); and


 


(p)                                 the second ranking
assignment of the loan made between DDBCo and Midco under one of the
Intercompany Loan Agreements given by DDBCo in favour of the Senior Discount
Notes Issuer (the “Senior Discount Notes
Second Ranking Intercompany Assignment”).


 


“Permitted Share Issue” means:


 


(a)                                  the issue of shares by
the Company to the Investors and the Management and under the Shareholders’
Agreement;


 


(b)                                 the issue of shares
by any member of the Group (other than the Company) to any other member of the
Group provided that the new shares are subject to the same security, if any,
under the Security Documents as the shares already in issue;


 


(c)                                  the issue of any
shares in Target to any directors, executives, non-executives, managers or
employees of the Group pursuant to any Existing Share Option Scheme;


 


(d)                                 the issue of any
shares in the Company pursuant to any share option scheme introduced to replace
the Existing Share Option Schemes;


 


(e)                                  with the prior
approval of the Agent (acting on the instructions of the Majority Lenders) the
issue of shares of any Holdco (other than of Midco or Newco) under any
employees’ share option scheme, or any other directors’, executives’,
non-executives’, or managers’ share option scheme not referred to in paragraph
(c) above; or


 


(f)                                    the issue of shares
under the Scheme of Arrangement, the Bridge Facility Warrant Instrument or as
contemplated by the Funds Flow Memorandum.


 


“Permitted Transaction” means:


 


(a)                                  any loan permitted
under paragraph (b), (c), (d), (e), (f), (g), (h) and, to the extent it relates
to a loan from one Obligor to another Obligor only, (i) of Permitted Loan;


 


(b)                                 any guarantee, bond or
indemnity permitted under paragraph (c), (d), (e) and (g) of Permitted
Guarantees;


 


(c)                                  any transaction
expressly required pursuant to the Transaction Documents;


 


(d)                                 any arrangement in
respect of a Permitted Payment (other than in respect of paragraph (d) of that
definition);


 


(e)                                  any payments or other
transactions contemplated by the Funds Flow Memorandum;


 


(f)                                    the Whitewash
Intra-Group Loan Agreement;


 


(g)                                 the Intercompany Loan
Agreements; or


 


(h)                                 the Working Capital
Support Letter.


 


“Press Release”
means a press release in the Agreed Form to be issued by or on behalf of Newco
announcing the terms and conditions of the Acquisition.


 


33





















 


“Proceeds”
means Net Flotation Proceeds, Net Sale Proceeds, Net Recovery Proceeds and
Insurance Proceeds (in each case as defined in Clause 11 (Prepayment and Cancellation)).


 


“Qualifying Lender”
has the meaning given to it in Clause 16 (Tax
gross-up and indemnities).


 


“Quasi Security”
means a transaction under which any member of the Group will:


 


(a)                                  sell, transfer or
otherwise dispose of any of its assets on terms whereby they are or may be
leased to or re-acquired by any other member of the Group;


 


(b)                                 sell, transfer or
otherwise dispose of any of its receivables on recourse terms (except for
customary warranties in respect of the disposal of such receivables); or


 


(c)                                  enter into any other
preferential arrangement having a similar effect,


 


in circumstances where the arrangement
or transaction is entered into primarily as a method of raising Financial
Indebtedness or of financing the acquisition of an asset.


 


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


 


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


 


(b)                                 (if
the currency is euro) 2 TARGET Days before the first day of that period; or


 


(c)                                  (for
any other currency) 2 Business Days before the first day of that period,


 


unless market practice differs in the Relevant
lnterbank Market for a currency, in which case the Quotation Day for that
currency will be determined by the Agent in accordance with market practice in
the Relevant lnterbank Market (and if quotations for that currency and period would
normally be given by leading banks in the Relevant lnterbank Market on more
than one day, the Quotation Day will be the last of those days).


 


“Receiving Agent”
means the receiving agent for Newco in connection with the Acquisition.


 


“Receiving Agent Account”
means the account to be established with a bank in the name of Newco into which
the proceeds of any Utilisation to purchase shares in the share capital of the
Target will be paid and from which payments will be made by the Receiving Agent
to shareholders of the Target in consideration of the Acquisition.


 


“Receiving Agent
Letter” means the letter of appointment for the Receiving Agent,
containing customary terms for such letter as utilised in transactions of this
nature, from Newco to the Receiving Agent and countersigned by the Receiving
Agent.


 


“Reference Banks”
means, in relation to LlBOR and Mandatory Cost, the principal London offices of
Barclays Bank PLC, Credit Suisse First Boston and The Royal Bank of Scotland
plc and, in relation to EURIBOR, the principal office in London of Barclays
Bank PLC, Credit Suisse First Boston and The Royal Bank of Scotland plc or such
other banks as may be appointed by the Agent in consultation with the Company.


 


“Refinancing
Utilisation” means a Term Loan made available to any Borrower for
the purpose of refinancing Existing Debt.


 


“Re-Investors”
means shareholders of the Target prior to the Completion Date (and/or their
Affiliates) who elect to become investors in the Company under the Scheme of
Arrangement.


 


34





















 


“Related Fund”
means, in relation to a trust or fund or other entity, another 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
and either has the same fund manager or asset manager or has common ownership
as such first mentioned relevant trust or fund or other entity.


 


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


 


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


 


(a)                                  its jurisdiction of
incorporation; and


 


(b)                                 any jurisdiction where
it conducts its business.


 


“Repeating Representations”
means each of the representations set out in Clause 22.1 (Status) to Clause 22.4 (Power and Authority), paragraph (a) of
Clause 22.6 (No Default) and
paragraph (d) of Clause 22.8 (Financial
statements).


 


“Reports”
means the Accountants’ Report, the Financing Case, the Commercial Report, the
Due Diligence Report, the Environmental Report, the Insurance Report, the Tax
Report and the Technical Report.


 


“Reservations”
means:


 


(a)                                  the principle that
equitable remedies are remedies which may be granted or refused at the
discretion of the court, the limitation of enforcement by laws relating to
bankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria,
administration and other laws generally affecting the rights of creditors, the
time barring of claims under the Limitation Acts, the possibility that an
undertaking to assume liability for or to indemnify a person against
non-payment of UK stamp duty may be void, defences of set-off or counterclaim
and similar principles, rights and defences under the laws of any jurisdiction
in which relevant obligations may have to be performed; and


 


(b)                                 any general principles
of the law limiting the obligations of any Obligor which are specifically
referred to in any legal opinion delivered pursuant to Clause 4 (Conditions of Utilisation) or Clause 28 (Changes to the Obligors).


 


“Restricted Person” means:


 


(a)                                  any Investor, the
Management or any Holding Company of any Investor;


 


(b)                                 any person with an
interest (direct or indirect) in the shares in the Company;


 


(c)                                  any joint venture,
consortium, partnership or similar arrangement of which any person described in
(a) or (b) is a member; and


 


(d)                                 each Holdco other than
Newco.


 


“Retained Cash”
means any Surplus Cashflow that the Group is not obliged to repay under
Clause 11.8 (Mandatory prepayment of
Surplus Cashflow) in relation to the relevant financial year of the
Company.


 


35





















 


“Revolving
Facility” means the revolving credit facility made available under
this Agreement as described in paragraph (d) of Clause 2.1 (The Facilities), part of which may be
designated as an Ancillary Facility in accordance with Clause 9 (Ancillary Facilities).


 


“Revolving
Facility Borrower” means:


 


(a)                                  each Borrower
identified as a Revolving Facility Borrower in Part I of Schedule 1 (The Original Parties); and


 


(b)                                 any Additional
Borrower identified in an Accession Letter as a Borrower under the Revolving
Facility,


 


other than in the case of an Original
Borrower, following accession as an Obligor in accordance with this Agreement.


 


“Revolving
Facility Commitment” means:


 


(a)                                  in relation to an
Original Lender, the amount in the Base Currency set opposite its name under
the heading “Revolving Facility Commitment” in Part II or Part III of Schedule 1
(The Original Parties) and the
amount of any other Revolving Facility Commitment transferred to it under this
Agreement; and


 


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


 


to the extent not cancelled, reduced or
transferred by it under this Agreement (including a reduction pursuant to
Clause 9 (Ancillary Facilities)).


 


“Revolving
Facility Lender” means:


 


(a)                                  any Original Revolving
Facility Lender; and


 


(b)                                 any bank, financial
institution, trust, fund or other entity which has become a Revolving Facility
Lender in accordance with Clause 27 (Changes
to the Lenders),


 


which in each case has not ceased to be a
Revolving Facility Lender in accordance with this Agreement.


 


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


 


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


 


“Rollover Loan”
means one or more Revolving Facility Loan(s):


 


(a)                                  made or to be made
on the same day that one or more maturing Revolving Facility Loan(s) is or are
due to be repaid;


 


(b)                                 the aggregate
amount of which is equal to or less than the maturing Revolving Facility
Loan(s) (unless it is more than the maturing Revolving Facility Loan(s) solely
because it arose as a result of the operation of Clause 8.2 (Unavailability of a currency));


 


(c)                                  in the same
currency as the maturing Revolving Facility Loan(s) (unless it arose as a
result of the operation of Clause 8.2 (Unavailability
of a currency)); and


 


36





















 


(d)                                 made or to be made to
the same Borrower for the purpose of refinancing the maturing Revolving
Facility Loan(s).


 


“Scheme Documents” means:


 


(a)                                  the Press Release;


 


(b)                                 the Offer Circular and
any other circular sent to the shareholders of the Target after the date of
this Agreement relating to the Acquisition or the Scheme of Arrangement;


 


(c)                                  the Scheme of
Arrangement document (the final form of which is to be set out in part 3 of the
Offer Circular); and


 


(d)                                 the documentation
relating to the offers to be made to holders of options under the Existing
Share Option Schemes.


 


“Scheme of
Arrangement” means the scheme of arrangement pursuant to section 425
of the Companies Act 1985 pursuant to which the existing share capital of the
Target will be cancelled and new share capital in the Target will be issued to
Newco and in consideration of which (i) Newco will make certain payments to
Target’s existing shareholders and/or (ii) Target’s existing shareholders shall
subscribe for Subordinated Preference Certificates and shares in the Company.


 


“Screen Rate”
means:


 


(a)                                  in relation to LIBOR,
the British Bankers Association Interest Settlement Rate for the relevant
currency and period; and


 


(b)                                 in relation to
EURIBOR, the percentage rate per annum determined by the Banking Federation of
the European Union for the relevant period,


 


displayed on the appropriate page of the
Telerate screen. If the agreed page is replaced or service ceases to be
available, the Agent may specify another page or service displaying the
appropriate rate after consultation with the Company and the Lenders.


 


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


 


“Security
Documents” means:


 


(a)                                  Debenture 1 and
Debenture 2; and


 


(b)                                 any other security
document that may at any time be agreed to be given as Security in favour of a
Finance Party (other than a High Yield Notes Finance Party) for any of the
Liabilities pursuant to or in connection with any Finance Documents (other than
the High Yield Notes Finance Documents, the Bridge Subordinated Preference
Certificates and the Bridge Subordinated Preference Certificates Instrument).


 


“Selection Notice”
means a notice substantially in the form set out in Part III of Schedule 3
(Requests) given in accordance
with Clause 13 (Interest Periods)
in relation to a Term Facility.


 


“Senior Discount
Notes” means the 10.375% senior discount notes due 2012 to be issued
by the Senior Discount Notes Issuer pursuant to the Senior Discount Notes
Indenture in an aggregate principal amount at maturity of $450,000,000 on or
about 24 November 2004 for the


 


37





















 


purposes of indirectly funding DDBCo’s redemption of
up to $295,000,000 in principal amount outstanding of Subordinated Preference
Certificates, together with properly incurred fees and expenses associated
therewith, and additional 10.375% senior discount notes due 2012 issued
pursuant to the Senior Discount Notes Indenture having an initial accreted
value equal to the amount of liquidated damages, if any, due pursuant to the
Senior Discount Notes Issuer’s obligations to file with, and have declared
effective by, the U.S. Securities and Exchange Commission, an exchange offer or
shelf registration statement with respect to such 10.375% senior discount notes
due 2012.


 


“Senior Discount
Notes Finance Documents” means the Senior Discount Notes Indenture
the loan agreement relating to the Senior Discount Notes On-Loan, the Senior
Discount Notes On-Loan Pledge, the Senior Discount Notes First Ranking
Intercompany Assignment and the Senior Discount Notes Second Ranking
Intercompany Assignment.


 


“Senior Discount
Notes Finance Parties” means the holders of
the Senior Discount Notes and the trustee of the Senior Discount Notes.


 


“Senior Discount
Notes Guarantee” means the guarantee given by DDBCo of the Senior
Discount Notes Issuer’s obligations and liabilities under and in respect of the
Senior Discount Notes.


 


“Senior Discount
Notes Indenture” means the indenture constituting the Senior
Discount Notes dated on or about 24 November 2004 between the Senior
Discount Notes Issuer, DDBCo as guarantor of the Senior Discount Notes and The
Bank of New York as trustee, which incorporates the Senior Discount Notes
Guarantee.


 


“Senior Discount
Notes Issuer” means Inmarsat Finance II plc.


 


“Senior Discount
Notes On-Loan” means the on-loan of the proceeds of the Senior
Discount Notes to be made by the Senior Discount Notes Issuer to DDBCo.


 


“Senior
Finance Document” means this
Agreement, each Accession Letter, any Ancillary Facility Document, each Fee
Letter, any Hedging Document, the lntercreditor Agreement, each Security
Document, any Syndication Agreement, the Syndication Side Letter, the Amendment
and Restatement Agreement and any other document designated as such by the
Agent and the Company.


 


“Senior Finance
Party” means the Agent, an Ancillary Lender, the Mandated Lead
Arrangers, the Bookrunners, the Issuing Bank, a Lender, the
Security Trustee.


 


“Shareholders’
Agreement” means the shareholders’ agreement in the Agreed Form
dated on or about the date of this Agreement between the Target, the Original
Investors set out in paragraphs (a) and (b) of the definition of Original
Investors, the Company, DDBCo, Midco and Newco (and to which the Management and
the Re-Investors will accede) relating to:


 


(a)                                  the subscription for
shares in the Company by the Original Investors and the Management; and


 


(b)                                 the issue of
Subordinated Preference Certificates pursuant to the Subordinated Preference
Certificates Instruments.


 


“Specified Time”
means a time determined in accordance with Schedule 8 (Timetables).


 


38





















 


“Sponsor Equity”
means the ordinary share capital of the Company and the Subordinated Preference
Certificates.


 


“Subordinated
Preference Certificates” means:


 


(a)                                  the subordinated
preference certificates, in the Agreed Form, issued or to be issued by the
Company or DDBCo to the Original Investors and the Management which are
subordinated on the terms set out in the Intercreditor Agreement; and


 


(b)                                 any other subordinated
preference certificates on the same terms as those described in (a) above
(except for technical and administrative amendments) issued by the Company or
DDBCo to a person that is party to (or accedes as a party to) the Intercreditor
Agreement as an Investor.


 


“Subordinated
Preference Certificates Instruments” means the deed poll instrument
in the Agreed Form pursuant to which the Subordinated Preference Certificates
are, or are to be, constituted.


 


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


 


(a)                                  which is controlled,
directly or indirectly, by the holding company;


 


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


 


(c)                                  which is a subsidiary of
another Subsidiary of the holding company,


 


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


 


“Subsidiary EBITDA”
means, in respect of a Subsidiary of the Group, the EBITDA as defined in
Clause 24.7 (Definitions) as
if references to the Group in that definition and in the definition of any
other defined terms referred to in the definition of EBITDA were deemed to be
references to the relevant Subsidiary of the Group for the purposes of this
definition and shall be calculated on an unconsolidated basis.


 


“Surplus Cashflow” means, in relation to the period of 24
months to 31 December 2005 or any subsequent financial year of the
Company, Cashflow for that period of 24 months or financial year (as
applicable) minus:


 


(a)                                  Net Debt
Service (as defined in Clause 24.7 (Definitions)) for
that period or financial year (as appropriate);


 


(b)                                 any
prepayments of the Facilities or, if such prepayment is made in accordance with
the terms of the Intercreditor Agreement and is not a prepayment from the
proceeds of issue of the High Yield Notes, any prepayments of the Bridge
Facility made during that period or financial year (as appropriate) other than
prepayments of the Facilities made under Clause 11.8 (Mandatory prepayment of Surplus Cashflow)
or its equivalent in the Bridge Facility Agreement;


 


39





















 


(c)                                  the
amount by which budgeted Capex (as defined in Clause 24.7 (Definitions)) for that period or
financial year (as appropriate) (as set out in the Financing Case) is greater
than actual Capex (as defined in Clause 24.7 (Definitions)) for
that period or financial year (as appropriate);


 


(d)                                 $10,000,000;


 


(e)                                  any
Proceeds received by the Group during that period or financial year (as
appropriate) permitted under the terms of this Agreement to be reinvested in
the Group; and


 


(f)                                    the
proceeds received in that financial year of each subscription for shares in the
Company or subordinated shareholders loans to any Holdco that have been on lent
(directly or indirectly) to Newco or used to subscribe for shares in Newco and
subordinated (in each case) to the Facilities and the Bridge Facility under the
terms of the Intercreditor Agreement.


 


“Syndication”
means completion of the general syndication of the Facilities.


 


“Syndication
Agreement” means an agreement to be entered into between the Parties
to novate rights and obligations under this Agreement to persons becoming
Parties as a result of the sub-underwriting and syndication of the Facilities.


 


“Syndication Date”
means the date (as determined by the Bookrunners and notified to the Company)
on which a Syndication has occurred and the additional syndicate members have
become bound by this Agreement or, if earlier, the date falling 4 months after
the Completion Date.


 


“Syndication Side
Letter” means the letter dated 5 September between the Mandated
Lead Arrangers and Newco relating to Syndication.


 


“Target”
means Inmarsat Ventures plc.


 


“TARGET”
means Trans-European Automated Real-time Gross Settlement Express Transfer
payment system.


 


“TARGET Day”
means any day on which TARGET is open for the settlement of payments in euro.


 


“Tax”
means any tax, levy, impost, duty or other charge or withholding of a similar
nature (including any penalty or interest payable in connection with any
failure to pay or any delay in paying any of the same).


 


“Taxes Act”
means the Income and Corporation Taxes Act 1988.


 


“Tax Report”
means the tax structuring report relating to the Acquisition prepared by
PricewaterhouseCoopers.


 


“Technical Report”
means the technical report relating to the Acquired Group prepared by
independent consultants.


 


“Term Facility” means Facility A, Facility B
or Facility C.


 


“Term Loan”
means a Facility A Loan, a Facility B Loan or a
Facility C Loan.


 


40





















 


“Termination Date”
means:


 


(a)                                  in relation to
Facility A, the date which is 6 years after the Completion Date;


 


(b)                                 in relation to
Facility B, the date which is 7 years after the Completion Date;


 


(c)                                  in relation to
Facility C, the date which is 8 years after the Completion Date;


 


(d)                                 in relation to the
Capex Facility, the date which is 6 years after the Completion Date; and


 


(e)                                  in relation to the
Revolving Facility, the date which is the earlier of 6 years after the
Completion Date and the date on which Facility A is repaid or prepaid and
cancelled in full.


 


“Testing Period”
has the meaning given to it in Clause 24.7 (Definitions).


 


“Total Ancillary
Commitments” means the aggregate of the Ancillary Commitments, being
zero at the date of this Agreement.


 


“Total Ancillary
Limit” means $30,000,000.


 


“Total Borrowings”
means, at any time, the aggregate outstanding principal, capital or nominal
amount (including any accrued “payment-in-kind” interest but excluding any
fixed or minimum premium payable on prepayment or redemption):


 


(a)                                  under the Senior Finance
Documents;


 


(b)                                 under the Bridge
Facility Finance Documents (other than the Bridge Subordinated Preference
Certificates and the Bridge Subordinated Preference Certificates Instrument);


 


(c)                                  under the High
Yield Notes Finance Documents other than the High Yield Notes Inter Company
Loan Agreement Document (in each case as construed, for the avoidance of doubt,
in accordance with Clause 1.4 (Alternative
debt instrument)); and


 


(d)                                 of Financial Indebtedness incurred under paragraphs (f),
(l), (j) and (k) of the definition of Permitted Financial Indebtedness,


 


in each case at that time.


 


“Total Capex
Facility Commitment” means the aggregate of the Capex Facility
Commitments, being $100,000,000 at the date of this Agreement.


 


“Total Commitments”
means the aggregate of the Total Facility A
Commitments, the Total Facility B Commitments, the Total Facility C
Commitments, the Total Capex Facility Commitments, the Total Revolving Facility
Commitments and the Total Ancillary Commitments, being $975,000,000 at the date
of this Agreement.


 


“Total Facility A
Commitments” means the aggregate of the Facility A
Commitments, being $400,000,000 at the date of this Agreement.


 


“Total Facility B
Commitments” means the aggregate of the Facility B Commitments,
being $200,000,000 at the date of this Agreement.


 


“Total Facility C
Commitments” means the aggregate of the Facility C Commitments,
being $200,000,000 at the date of this Agreement.


 


41





















 


“Total Revolving
Facility Commitments” means the aggregate of the Revolving Facility
Commitments, being $75,000,000 at the date of this Agreement.


 


“Transaction
Documents” means the Investor Documents, the Scheme Documents and
the Finance Documents.


 


“Transfer
Certificate” means a certificate substantially in the form set out
in Schedule 5 (Form of Transfer
Certificate) or any other form agreed between the Agent and the
Company.


 


“Transfer Date”
means, in relation to a transfer, the later of:


 


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


 


(b)                                 the date on which the
Agent executes the Transfer Certificate.


 


“Trigger Date”
means the later of:


 


(a)                                  the date of successful
in-orbit acceptance of one I4 Satellite; and


 


(b)                                 the date falling 3
years after the Completion Date.


 


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


 


“Utilisation”
means a Loan, a Letter of Credit or a Bank Guarantee (but not a utilisation of an Ancillary Facility).


 


“Utilisation Date”
means the date on which a Utilisation is, or is to be,
made.


 


“Utilisation
Request” means (in relation to a Loan) a notice substantially in the
form set out in Part I of Schedule 3 (Requests)
or (in relation to a Letter of Credit or Bank Guarantee) a notice substantially
in the form set out in Part II of Schedule 3 (Requests).


 


“VAT”
means value added tax as provided for in the Value Added Tax Act 1994 and any
other tax of a similar nature.


 


“Whitewash
Intra-Group Loan Agreement” means the loan agreement between the
Holdcos and certain other members of the Group pursuant to which loans are made
by members of the Group to the Holdcos and certain other members of the Group
for the purpose of enabling them to meet payment obligations under the Finance
Documents and/or the Investor Documents.


 


“Working Capital”
has the meaning given to it in Clause 24.7 (Definitions).


 


“Working Capital
Support Letter” means the letter from the Company and certain other
members of the Group to certain members of the Group relating to the provision
of downstream working capital support by the Company to members of the Acquired
Group for the purposes of complying with the obligation set out in Clause 25.5 (Financial Assistance) requiring Obligors
which are members of the Acquired Group to implement the procedures set out in
sections 155 to 158 of the Companies Act 1985.


 


1.2                                 Construction


 


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


 


(i)                                     any person shall be
construed so as to include its successors in title, permitted assigns and
permitted transferees:


 


42





















 


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


 


(iii)                               “Barclays Capital” means Barclays Capital,
the Investment Banking Division of Barclays Bank PLC;


 


(iv)                              a Borrower
providing “cash cover” for a
Letter of Credit or a Bank Guarantee or a contingent liability under an
Ancillary Facility means a Borrower paying an amount in the currency of the
Letter of Credit or, as the case may be, Bank Guarantee or contingent liability
to an interest-bearing account in the name of the Borrower and the following
conditions are met:


 


(A)                              the account is with
the Security Trustee or, in relation to an Ancillary Facility, the relevant
Ancillary Lender;


 


(B)                                withdrawals from
the account may only be made to pay a Senior Finance Party amounts due and
payable to it under this Agreement in respect of that Letter of Credit, Bank
Guarantee or contingent liability under that Ancillary Facility until no amount
is or may be outstanding under that Letter of Credit, Bank Guarantee or
contingent liability under that Ancillary Facility; and


 


(C)                                if the Security
Trustee or Ancillary Lender requires, the Borrower has executed a security
document over that account, in form and substance satisfactory to the Security
Trustee or the Ancillary Lender with which that account is held, creating a
first ranking security interest over that account;


 


(v)                                 the “equivalent” in any currency (the “first currency”) of any amount in another
currency (the “second currency”)
shall be construed as a reference to the amount in the first currency which
could be purchased with that amount in the second currency at the Agent’s Spot
Rate of Exchange for the purchase of the first currency with the second
currency in the London foreign exchange market at or about 11:00 a.m. on a
particular day (or at or about such time and on such date as the Agent may from
time to time reasonably determine to be appropriate in the circumstances);


 


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


 


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


 


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


 


(ix)                                a Borrower “repaying” or “prepaying” a Letter of Credit, Bank Guarantee or contingent
liability under an Ancillary Facility means:


 


43





















 


(A)                              that Borrower
providing cash cover for that Letter of Credit, Bank Guarantee or contingent
liability under that Ancillary Facility;


 


(B)                                the maximum amount
payable under the Letter of Credit, Bank Guarantee or contingent liability
under that Ancillary Facility being reduced in accordance with its terms; or


 


(C)                                the Issuing Bank
or, as the case may be, Ancillary Lender being satisfied that it has no further
liability under that Letter of Credit, Bank Guarantee or contingent liability
under that Ancillary Facility,


 


and the amount by which a Letter of Credit, Bank
Guarantee or contingent liability under an Ancillary Facility is repaid or
prepaid under sub-paragraphs (A) and (B) above is the amount of the relevant
cash cover or reduction;


 


(x)                                   any reference to a
document, agreement or instrument is a reference to that document, agreement or
instrument as varied, amended, novated, supplemented or restated, in each case
in accordance with this Agreement;


 


(xi)                                “shares” or “share capital” includes equivalent
ownership interests (and “shareholder”
and similar expressions shall be construed accordingly);


 


(xii)


 


(A)                              “dollars” and “$” shall mean the lawful currency of the United States of
America;


 


(B)                                “sterling” and “£” shall mean the lawful currency of the United Kingdom; and


 


(C)                                “euro” and “€” shall mean the single currency of the Participating Member
States.


 


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


 


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


 


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


 


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


 


(d)                                 A Default and an
Event of Default is “continuing”
if it has not been remedied or waived.


 


1.3                                 Third Party Rights


 


(a)                                  Other than:


 


(i)                                     in relation to Clause
7.7 (b) (Exclusion of Liability);
or


 


(ii)                                  a Hedging Bank in relation
to Clause 21 (Guarantee and Indemnity);
or


 


(iii)                               unless expressly provided
to the contrary in this Agreement,


 


a person who is not a Party to this
Agreement has no right under the Contracts (Rights of Third Parties) Act 1999
to enforce or to enjoy the benefit of any term of this Agreement.


 


(b)                                 Notwithstanding the
terms of this Agreement, the consent of any person who is not a Party to this
Agreement is not required to rescind or vary this Agreement at any time.


 


44





















 


1.4                                 Alternative debt
instruments


 


In the event that the High Yield Notes are not
issued and the Group undertakes an alternative refinancing of all of the Bridge
Facility, references in this Agreement to the High Yield Notes and related definitions
shall be construed to apply to such alternative refinancing provided that that
alternative refinancing is undertaken by Bondco or a Holdco other than Newco
and is on terms which are subject to, and consistent with, the Intercreditor
Agreement and so that such alternative refinancing is treated under the
Intercreditor Agreement in the same manner as the issue of the High Yield Notes
would have been treated.


 


45





















 


SECTION 2


 


THE FACILITIES


 


2.                                       THE FACILITIES


 


2.1                                 The Facilities


 


Subject to the terms of this Agreement:


 


(a)                                  the Facility A
Lenders make available to the Facility A Borrowers a term loan facility in
dollars in an aggregate amount equal to the Total Facility A Commitments, being
an amount of $400,000,000 at the date of this Agreement;


 


(b)                                 the Facility B
Lenders make available to the Facility B Borrowers a term loan facility in
dollars in an aggregate amount equal to the Total Facility B Commitments, being
an amount of $200,000,000 at the date of this Agreement;


 


(c)                                  the Facility C
Lenders make available to the Facility C Borrowers a term loan facility in
dollars equal to the Total Facility C Commitments, being an amount of
$200,000,000 at the date of this Agreement;


 


(d)                                 the Capex Facility
Lenders make available to the Capex Facility Borrowers a capital expenditure
facility in dollars in an aggregate amount equal to the Total Capex Facility
Commitments, being an amount of $100,000,000 at the date of this Agreement; and


 


(e)                                  the Revolving
Facility Lenders make available to the Revolving Facility Borrowers a
multicurrency revolving credit facility in an aggregate amount equal to the
Total Revolving Facility Commitments being a Base Currency Amount of
$75,000,000 at the date of this Agreement (parts of which may, from time to
time and in an aggregate amount at any time up to the Total Ancillary Limit, be
designated as Ancillary Facilities).


 


2.2                                 Senior Finance
Parties’ rights and obligations


 


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


 


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


 


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


 


2.3                                 Company as Obligors’
agent


 


Each Obligor:


 


(a)                                  irrevocably
authorises the Company to act on its behalf as its agent in relation to the
Senior Finance Documents and the Hedging Documents (in the case of Additional
Obligors by their execution of Accession Letters), including:


 


46





















 


(i)                                     to give and receive
as agent on its behalf all notices, consents and instructions (including
Utilisation Requests);


 


(ii)                                  to supply on its
behalf all information concerning itself, its financial condition or otherwise
to the relevant persons contemplated under this Agreement;


 


(iii)                               to agree, accept
and sign on its behalf all documents in connection with the Senior Finance
Documents and Hedging Documents (including amendments, restatements and
variations of and consents under any Senior Finance Documents and Hedging
Documents, and to execute any new Senior Finance Documents and Hedging
Documents); and


 


(iv)                              to take such other
action as may be necessary or desirable under or in connection with the Senior
Finance Documents and Hedging Documents; and


 


(b)                                 confirms that it
will be bound by any omission, agreement, undertaking, settlement, waiver,
notice, communication or notice or other action taken by the Company under or
in connection with the Senior Finance Documents and Hedging Documents (whether
or not known to any other Obligor and whether occurring before or after such
Obligor became an Obligor under this Agreement) and each Senior Finance Party
and Hedging Bank may rely on any action purported to be taken by the Company on
behalf of any Obligor.


 


2.4                                 Acts of the Company


 


(a)                                  The respective
liabilities of each of the Obligors under the Senior Finance Documents shall
not be in any way affected by:


 


(i)                                     any actual or
purported irregularity in any act done, or failure to act, by the Company;


 


(ii)                                  the Company acting (or
purporting to act) in any respect outside any authority conferred upon it by
any Obligor; or


 


(iii)                               any actual or
purported failure by, or inability of, the Company to inform any Obligor of
receipt by it of any notification under the Senior Finance Documents.


 


(b)                                 In the event of any
conflict between any notices or other communications of the Company and any
other Obligor, those of the Company shall prevail.


 


3.                                       PURPOSE


 


3.1                                 Purpose


 


(a)                                  Each Borrower to
whom a Term Facility is available shall apply all amounts borrowed by it under
that Term Facility in or towards financing or refinancing and/or, in relation
to paragraphs (ii) and (iii) only, making intra-group loans for the purpose of
financing or refinancing (but, in each case, only on or after the Completion
Date):


 


(i)                                     consideration payable to
shareholders of the Target for the Acquisition under the Scheme of Arrangement;


 


(ii)                                  the Existing Debt;


 


(iii)                               the Acquisition Costs;
and


 


47





















 


(iv)                              Capital Expenditure,


 


in each case (other than Capital Expenditure) in
accordance with the Funds Flow Memorandum and/or the summary of Acquisition
Costs (and the Company irrevocably authorises and directs the Agent to make the
payments to the relevant recipients on its behalf as described in the Funds
Flow Memorandum).


 


(b)                                 Each Borrower to
whom the Capex Facility is available shall apply all amounts borrowed by it under
the Capex Facility to finance Capital Expenditure of the Group in relation to
the I4 Programme in accordance with the Financing Case.


 


(c)                                  Each Borrower to
whom the Revolving Facility is available shall apply all amounts borrowed by it
under the Revolving Facility towards financing the general corporate purposes
of the Group.


 


(d)                                 No amount borrowed
under the Revolving Facility shall be applied in payment of consideration
payable by Newco to shareholders of the Target for the Acquisition or in
refinancing the Existing Debt.


 


(e)                                  No amount borrowed
under the Facilities shall be applied in any manner that may be illegal or
contravene any applicable law or regulation in any relevant jurisdiction
concerning financial assistance by a company for the acquisition of or
subscription for shares or concerning the protection of shareholders’ capital.


 


3.2                                 Monitoring


 


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


 


4.                                       CONDITIONS OF UTILISATION


 


4.1                                 Initial conditions
precedent


 


(a)                                  This Agreement
shall not be effective unless, on or before the date of this Agreement, the
Agent has received (or waived in writing receipt of) all of the documents and
other evidence listed in Part I of Schedule 2 (Conditions precedent) in form and
substance satisfactory to the Agent. The Agent shall notify the Company and the
Lenders promptly on being so satisfied.


 


(b)                                 No Borrower may
make a Utilisation unless the Agent has received all
of the documents and other evidence listed in Part I and Part II of Schedule 2
(Conditions precedent) in form
and substance satisfactory to the Agent. The Agent shall notify the Company and
the Lenders promptly upon being so satisfied.


 


(c)                                  Each duly executed
document that is delivered to the Agent in the Agreed Form under this
Clause 4.1 (Initial conditions
precedent) shall be deemed to be in form and substance satisfactory
to the Agent.


 


4.2                                 Further conditions
precedent


 


Subject to Clause 4.6 (Certain Funds Period), the Lenders will not be obliged to
comply with Clause 5.4 (Lenders’
participation in a Loan) or Clause 6.6 (Issue of Letters of Credit or Bank Guarantees) if on the
date of the Utilisation Request and on the proposed Utilisation Date:


 


(a)                                  in the case of a
Rollover Loan, the Agent has given notice under Clause 26.21 (Acceleration);


 


48





















 


(b)


 


(i)                                     in the case of a
Utilisation on the first Utilisation Date, any of the representations and
warranties in Clause 22 (Representations)
expressed to apply on the Completion Date as set out in Clause 22.25 (Times on which representations made) are
not true; or


 


(ii)                                  in the case of any
other Utilisation, any of the Repeating Representations are not true provided
that, in relation to those representations and warranties under Clause 22 (Representations) which are not qualified
by ‘material’ or ‘Material Adverse Effect’, those Repeating Representations
need only be true in all material respects.


 


4.3                                 Conditions relating
to Optional Currencies


 


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


 


(i)                                     it is readily
available in the amount required and freely convertible into the Base Currency
in the Relevant lnterbank Market on the Quotation Day and the Utilisation Date
for that Utilisation; and


 


(ii)                                  it is euro or
sterling or has been approved by the Agent (acting on the instructions of all
the Revolving Facility Lenders) on or prior to receipt by the Agent of the
relevant Utilisation Request or Selection Notice for that Utilisation.


 


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


 


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


 


(ii)                                  if approval has been
granted, the minimum amount (and, if required, integral multiples) for any
subsequent Utilisation by way of a Loan in that currency.


 


4.4                                 Maximum number of
Utilisations


 


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


 


(i)                                     more than 2 Facility A
Loans would be outstanding;


 


(ii)                                  more than 2 Facility B
Loans would be outstanding;


 


(iii)                               more than 2 Facility C
Loans would be outstanding;


 


(iv)                              more than 5 Capex
Facility Loans would be outstanding; and


 


(v)                                 more than 10 Revolving
Facility Utilisations would be outstanding.


 


(b)                                 A Borrower may not
request that a Facility A Loan, a Facility B Loan, a Facility C Loan or a Capex
Facility Loan be divided if, as a result of the proposed division more than 2
Facility A Loans or more than 2 Facility B Loans, more than 2 Facility C Loans
or more than 5 Capex Facility Loans, would be outstanding.


 


(c)                                  Any Loan made by a
single Lender under Clause 8.2 (Unavailability
of a currency) shall not be taken into account in this Clause 4.4.


 


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4.5                                 Drawing of
Facilities


 


(a)                                  No Term Loan shall
be made unless Loans under Facility A, Facility B and Facility C are made at
the same time and in the same proportion as the Available Facility under each
of those Facilities bears to the aggregate of those Available Facilities.


 


(b)                                 No Revolving
Facility Utilisation shall be made before the Completion Date or the first
drawdown of the Term Facilities (whichever is the later).


 


(c)                                  No Capex Facility
Loan shall be made unless on the proposed Utilisation Date:


 


(i)                                     there is no
continuing Event of Default arising from a breach of the covenants contained in
Clause 24 (Financial Covenants)
and no such Event of Default would arise under those covenants if they were
tested on that Utilisation Date taking such proposed Utilisation into account;
and


 


(ii)                                  the Term Facilities
have been drawdown in full and there are no amounts standing to the credit of
the Overfunding Account.


 


4.6                                 Certain Funds
Period


 


Notwithstanding any other term of this Agreement or
any other Senior Finance Document, during the Certain Funds Period, unless a
Certain Funds Default is continuing or would result from the proposed Loan,
neither the Agent nor any of the Lenders shall:


 


(a)                                  invoke any
condition set out in Clause 4.2 (Further
conditions precedent) as a ground for refusing to make any
Utilisation or any utilisation of an Ancillary Facility during the Certain
Funds Period solely for the purposes specified in sub-paragraphs (a)(i) and (ii) of Clause 3.1 (Purpose) (a “Scheme of
Arrangement Utilisation”) to the extent of its Available Commitment
in respect of the Term Facilities;


 


(b)                                 exercise any right,
power or discretion to terminate or cancel the obligation to make any Scheme of
Arrangement Utilisation, other than under Clause 11.1 (Illegality) or Clause 11.3 (Mandatory cancellation);


 


(c)                                  have or exercise any
right of rescission or similar right or remedy which it or they may have in
respect of this Agreement in respect of any Scheme of Arrangement Utilisation;


 


(d)                                 take any step under
Clause 26.21 (Acceleration) in
respect of any Scheme of Arrangement Utilisation or that part of the
Commitments which may be used by way of Scheme of Arrangement Utilisation
(including the enforcement of any Security Documents) so as to prevent or
inhibit the payment of consideration in connection with the Scheme of
Arrangement; or


 


(e)                                  exercise any right of
set-off or counterclaim in respect of any Scheme of Arrangement Utilisation.


 


However, from and after termination of the Certain
Funds Period, all those rights, remedies and entitlements shall be available
even though they have not been exercised or available during the Certain Funds
Period.


 


50


















SECTION 3


 


UTILISATION


 


5.                                       UTILISATION – LOANS


 


5.1           Delivery of a Utilisation
Request


 


A
Borrower may utilise any Facility by way of a Loan by delivery to the Agent of
a duly completed Utilisation Request in the form of Part I of Schedule 3 (Requests) not later than the Specified
Time.


 


5.2           Completion
of a Utilisation Request for a Loan


 


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


 


(i)                                     it specifies that it
is for a Loan;


 


(ii)                                  it identifies
the Facility to be utilised and specifies whether or not the proposed
Utilisation is a Refinancing Utilisation;


 


(iii)                               in the
case of the Revolving Facility, it identifies the relevant Borrower;


 


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


 


(v)                                 the currency and
amount of the proposed Loan comply with Clause 5.3 (Currency and amount of a Loan);


 


(vi)                              the
proposed Interest Period complies with Clause 13 (Interest Periods); and


 


(vii)         it specifies the
account and bank (which must be in the principal financial centre of the
country of the currency of the Loan or, in the case of euro, the principal
financial centre of a Participating Member State in which banks are open for
general business on that day or London) to which the proceeds of the Loan are
to be credited.


 


(b)                                 Only one Loan may be
requested in each Utilisation Request by way of Loan.


 


5.3           Currency and amount of a Loan


 


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


 


(i)                                     in relation to a Term
Facility or the Capex Facility, dollars;


 


(ii)                                  in
relation to the Revolving Facility only, the Base Currency or an Optional
Currency, provided that, if in an Optional Currency, it must specify the Base
Currency Amount of the Optional Currency amount.


 


(b)                                 The amount of the
proposed Loan must be:


 


(i)                                     if the currency
selected is the Base Currency, a minimum of $5,000,000 for Facility A,
$5,000,000 for Facility B, $5,000,000 for Facility C, a minimum of $2,500,000
for the Capex Facility or a minimum of $1,000,000 for the Revolving Facility or
in each case, if less, the Available Facility; or


 


(ii)                                  if the
currency selected is euro, a minimum of €1,000,000 for the Revolving Facility
or, if less, the Available Facility; or


 


51





















 


(iii)                               if the
currency selected is sterling, a minimum of £500,000 for the Revolving Facility
or, if less, the Available Facility; or


 


(iv)                              if the
currency selected is an Optional Currency other than euro or sterling, the
minimum amount (and, if required, integral multiples) specified by the Agent
pursuant to paragraph (b)(ii) of Clause 4.3 (Conditions relating to Optional Currencies)
for the Revolving Facility or, if less, the Available Facility; and


 


(v)                                 in any event such
that its Base Currency Amount is less than or equal to the Available Facility.


 


5.4           Lenders’ participation in a
Loan


 


(a)                                  If the conditions set
out in this Agreement have been met, each Lender participating in a Facility
shall make its participation in each Loan under that Facility available by the
Utilisation Date through its Facility Office.


 


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


 


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


 


6.             UTILISATION – LETTERS OF
CREDIT AND BANK GUARANTEES


 


6.1           General


 


(a)                                  In this Clause 6 and
Clause 7 (Letters of Credit and Bank
Guarantees):


 


(i)                                     “Expiry Date” means, for a Letter of Credit
or Bank Guarantee, the last day of its Term;


 


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


 


(iii)                               “Renewal Request” means a written notice
delivered to the Agent in accordance with Clause 6.7 (Renewal of a Letter of Credit or Bank Guarantee);
and


 


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


 


(b)                                 Any reference in this
Agreement to:


 


(i)                                     the Interest Period
of a Letter of Credit or Bank Guarantee will be construed as a reference to the
Term of that Letter of Credit or Bank Guarantee;


 


(ii)                                  an amount
borrowed includes any amount utilised by way of Letter of Credit or Bank
Guarantee;


 


(iii)                               a
Utilisation made or to be made to a Borrower includes a Letter of Credit or
Bank Guarantee issued on its behalf;


 


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(iv)                              a Lender
funding its participation in a Utilisation includes a Lender participating in a
Letter of Credit or a Bank Guarantee;


 


(v)                                 amounts outstanding
under this Agreement includes amounts outstanding under any Letter of Credit or
Bank Guarantee; and


 


(vi)                              an
outstanding amount of a Letter of Credit or Bank Guarantee at any time is the
maximum amount that is or may be payable by the Borrower in respect of that
Letter of Credit or Bank Guarantee at that time.


 


(c)                                  Clause 5 (Utilisation - Loans) does not apply to a
Utilisation by way of Letter of Credit or Bank Guarantee.


 


6.2                                 Facility
Sub Limits


 


An
amount of the Revolving Facility not exceeding the Letter of Credit and Bank
Guarantee Limit may be utilised by way of Letter of Credit or Bank Guarantee.


 


6.3                                 Delivery
of a Utilisation Request for Letter of Credit or Bank Guarantee


 


A
Borrower to whom the Revolving Facility is available may request a Letter of
Credit or Bank Guarantee to be issued by delivery to the Agent of a duly
completed Utilisation Request in the form of Part II of Schedule 3 (Requests) not later than the Specified
Time.


 


6.4                                 Completion
of a Utilisation Request for Letter of Credit or Bank Guarantee


 


Each
Utilisation Request for a Letter of Credit or Bank Guarantee is irrevocable and
will not be regarded as having been duly completed unless:


 


(a)                                  it specifies that it
is for a Letter of Credit or Bank Guarantee;


 


(b)                                 it identifies the
relevant Revolving Facility Borrower.


 


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


 


(d)                                 the currency and
amount of the Letter of Credit or Bank Guarantee comply with Clause 6.5 (Currency and amount);


 


(e)                                  the form of Letter of
Credit or Bank Guarantee, as the case may be, is attached and such attached
form is in substantially the same form as Schedule 9 (Form of Letter of Credit) in relation to a
Letter of Credit or Schedule 10 (Form of
Bank Guarantee) in relation to a Bank Guarantee;


 


(f)                                    the Expiry Date of
the Letter of Credit or Bank Guarantee falls on or before the Termination Date
applicable to the Revolving Facility;


 


(g)                                 the Term of the
Letter of Credit or Bank Guarantee shall not exceed 12 months (unless the
beneficiary of the Letter of Credit or Bank Guarantee is H.M. Customs and
Excise);


 


(h)                                 the delivery
instructions for the Letter of Credit or Bank Guarantee are specified; and


 


(i)                                     in relation to any
Letter of Credit or Bank Guarantee, the Issuing Bank has confirmed that it is
entitled (having regard to applicable laws and regulations) to issue the Letter
of Credit or Bank Guarantee to the beneficiary identified in the Utilisation
Request by the applicable Specified Time.


 


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6.5                                 Currency
and amount


 


(a)                                  The currency
specified in a Utilisation Request for a Letter of Credit or Bank Guarantee
must be the Base Currency or (with the consent of the Lenders) an Optional
Currency.


 


(b)                                 Subject to paragraph
(a) above, the amount of the proposed Letter of Credit or Bank Guarantee must
be an amount whose Base Currency Amount is not more than the Available Facility
and which is:


 


(i)                                     if the currency
selected is the Base Currency, a minimum of $500,000 or, if less, the Available
Facility; or


 


(ii)                                  if the
currency selected is euro, a minimum of €500,000 or, if less, the Available
Facility;


 


(iii)                               if the
currency selected is sterling, a minimum of £500,000 or, if less, the Available
Facility; or


 


(iv)                              if the
currency selected is an Optional Currency other than euro or sterling, the
minimum amount (and, if required, integral multiples) specified by the Agent
pursuant to paragraph (b)(ii) of Clause 4.3 (Conditions
relating to Optional Currencies) or, if less, the Available
Facility,


 


or,
if less, in relation to Letters of Credit and Bank Guarantees, such amount as
will result in the aggregate Base Currency Amounts of all outstanding Letters
of Credit and all outstanding Bank Guarantees not exceeding the Letter of
Credit and Bank Guarantee Limit.


 


6.6                                 Issue
of Letters of Credit or Bank Guarantees


 


(a)                                  If the conditions set
out in this Agreement have been met, the Issuing Bank shall issue the Letter of
Credit or Bank Guarantee on the Utilisation Date.


 


(b)                                 The Issuing Bank will
only be obliged to comply with paragraph (a) above if on the date of the
Utilisation Request or (as applicable) the Renewal Request and on the proposed
Utilisation Date:


 


(i)                                     in the case of a
Letter of Credit or Bank Guarantee renewed in accordance with Clause 6.7 (Renewal of a Letter of Credit or Bank Guarantee),
the Agent has not given notice under Clause 26.21 (Acceleration); and


 


(ii)                                  other than
in the case of a Letter of Credit or Bank Guarantee renewed in accordance with
Clause 6.7 (Renewal of a Letter of Credit or
Bank Guarantee), the Repeating Representations to be made by each
Obligor are true in all material respects (in relation to those representations
and warranties under Clause 22 (Representations)
which are not qualified by ‘material’ or ‘Material Adverse Effect’).


 


(c)                                  The amount of each
Revolving Facility Lender’s participation in each Letter of Credit or Bank
Guarantee will be equal to its Proportion.


 


(d)                                 The Agent shall
determine the Base Currency Amount of each Letter of Credit or Bank Guarantee
which is to be issued in an Optional Currency and shall notify the Issuing Bank
and each Revolving Facility Lender of the details of the requested Letter of
Credit or Bank Guarantee and its participation in that Letter of Credit or Bank
Guarantee by the Specified Time.


 


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6.7                                 Renewal
of a Letter of Credit or Bank Guarantee


 


(a)                                  A Borrower may
request that any Letter of Credit or Bank Guarantee issued on its behalf be
renewed by delivery to the Agent of a Renewal Request by the Specified Time.


 


(b)                                 The Senior Finance
Parties shall treat any Renewal Request in the same way as a Utilisation
Request for a Letter of Credit or Bank Guarantee except that the conditions set
out in paragraphs (d) and (h) of Clause 6.4 (Completion
of a Utilisation Request for Letter of Credit or Bank Guarantee)
shall not apply.


 


(c)                                  The terms of each
renewed Letter of Credit or Bank Guarantee shall be the same as those of the
relevant Letter of Credit or Bank Guarantee immediately prior to its renewal,
except that:


 


(i)                                     its amount may be
less than the amount of the Letter of Credit or Bank Guarantee immediately
prior to its renewal; and


 


(ii)           its Term shall start
on the date which was the Expiry Date of the Letter of Credit or Bank Guarantee
immediately prior to its renewal, and shall end on the proposed Expiry Date
specified in the Renewal Request.


 


(d)                                 If the conditions set
out in this Agreement have been met, the Issuing Bank shall amend and re- issue
any Letter of Credit or Bank Guarantee pursuant to a Renewal Request.


 


6.8                                 Revaluation
of Letters of Credit or Bank Guarantees


 


(a)                                  If any Letter of
Credit or Bank Guarantee is denominated in an Optional Currency, the Agent
shall on 30 June and 31 December in each year recalculate the Base Currency
Amount of that Letter of Credit or Bank Guarantee by notionally converting into
the Base Currency the outstanding amount of that Letter of Credit or Bank
Guarantee on the basis of the Agent’s Spot Rate of Exchange on the date of
calculation.


 


(b)                                 A Borrower shall, if
requested by the Agent within 5 Business Days of any calculation under
paragraph (a) above, ensure that within 3 Business Days sufficient Revolving
Facility Utilisations are prepaid to prevent the Base Currency Amount of the
Revolving Facility Utilisations exceeding the Total Revolving Facility
Commitments by more than 5 per cent. of the Total Revolving Facility
Commitments following any adjustment to a Base Currency Amount under paragraph
(a) above.


 


7.                                       LETTERS OF CREDIT AND BANK
GUARANTEES


 


7.1                                 Immediately
payable


 


If a
Letter of Credit or Bank Guarantee or any amount outstanding under a Letter of
Credit or Bank Guarantee is expressed to be immediately payable, the Borrower
that requested the issue of that Letter of Credit or Bank Guarantee shall repay
or prepay that amount immediately.


 


7.2                                 Claims
under a Letter of Credit or Bank Guarantee


 


(a)                                  Each Borrower
irrevocably and unconditionally authorises the Issuing Bank to pay any claim
made or purported to be made under a Letter of Credit or Bank Guarantee
requested by it and which appears on its face to be in order (a “claim”).


 


55





















 


(b)                                 In relation to any
claim made or purported to be made under a Letter of Credit or Bank Guarantee,
each Borrower shall within 3 Business Days of demand pay to the Agent for the
Issuing Bank an amount equal to the amount of any claim.


 


(c)                                  Each Borrower
acknowledges that the Issuing Bank:


 


(i)                                     is not obliged to
carry out any investigation or seek any confirmation from any other person
before paying a claim; and


 


(ii)                                  deals in
documents only and will not be concerned with the legality of a claim or any
underlying transaction or any available set-off, counterclaim or other defence
of any person.


 


(d)                                 The obligations of a
Borrower under this Clause 7.2 will not be affected by:


 


(i)                                     the sufficiency,
accuracy or genuineness of any claim or any other documents; or


 


(ii)                                  any
incapacity of, or limitation on the powers of, any person signing a claim or
other document.


 


7.3                                 Indemnities


 


(a)                                  Each Borrower shall
within 3 Business Days of demand indemnify the Issuing Bank against any cost,
loss or liability incurred by the Issuing Bank (otherwise than by reason of the
Issuing Bank’s gross negligence or wilful misconduct) in acting as the Issuing
Bank under any Letter of Credit or Bank Guarantee requested by that Borrower.


 


(b)                                 Each Revolving
Facility Lender shall (according to its Proportion in relation to the Revolving
Facility) immediately on demand indemnify the Issuing Bank against any cost,
loss or liability incurred by the Issuing Bank (otherwise than by reason of the
Issuing Bank’s gross negligence or wilful misconduct) in acting as the Issuing
Bank under any Letter of Credit or Bank Guarantee (unless the Issuing Bank has
been reimbursed by an Obligor pursuant to a Senior Finance Document).


 


(c)                                  If any Revolving
Facility Lender is not permitted (by its constitutional documents or any
applicable law) to comply with paragraph (b) above, then that Lender will not
be obliged to comply with paragraph (b) above and shall instead be deemed to
have taken, on the date the Letter of Credit or Bank Guarantee is issued (or if
later, on the date the Lender’s participation in the Letter of Credit or Bank
Guarantee is transferred or assigned to that Revolving Facility Lender in
accordance with the terms of this Agreement), an undivided interest and
participation in the Letter of Credit or Bank Guarantee in an amount equal to
its Proportion of that Letter of Credit or Bank Guarantee. On receipt of demand
from the Agent, that Revolving Facility Lender shall pay to the Agent (for the
account of the Issuing Bank) an amount equal to its Proportion in relation to
the Revolving Facility of the amount demanded.


 


(d)                                 The Borrower which
requests a Letter of Credit or Bank Guarantee shall immediately within
3 Business Days of demand reimburse any Lender for any payment it makes to
the Issuing Bank under this Clause 7.3 in respect of that Letter of Credit or
Bank Guarantee.


 


(e)                                  The obligations of
each Lender under this Clause 7.3 are continuing obligations and will extend to
the ultimate balance of sums payable by that Lender in respect of any Letter of
Credit or Bank Guarantee, regardless of any intermediate payment or discharge
in whole or in part.


 


56





















 


(f)                                    The obligations of
any Lender under this Clause 7.3 will not be affected by any act, omission,
matter or thing which, but for this Clause 7.3, would reduce, release or
prejudice any of its obligations under this Clause 7.3 (without limitation
and whether or not known to it or any other person) including:


 


(i)            any time, waiver or consent granted to, or
composition with, any Obligor, any beneficiary under a Letter of Credit or Bank
Guarantee or other person;


 


(ii)           the release of any
other Obligor or any other person under the terms of any composition or
arrangement with any creditor of any member of the Group or any other person;


 


(iii)          the taking,
variation, compromise, exchange, renewal or release of, or refusal or neglect
to perfect, take up or enforce, any rights against, or security over assets of,
any Obligor, any beneficiary under a Letter of Credit or Bank Guarantee or
other person or any non-presentation or non-observance of any formality or
other requirement in respect of any instrument or any failure to realise the
full value of any security;


 


(iv)          any incapacity or
lack of power, authority or legal personality of or dissolution or change in
the members or status of an Obligor, any beneficiary under a Letter of Credit
or Bank Guarantee or any other person;


 


(v)                                 any amendment or
restatement (however fundamental) or replacement of a Senior Finance Document,
any Letter of Credit or Bank Guarantee or any other document or security;


 


(vi)          any unenforceability,
illegality or invalidity of any obligation of any person under any Senior
Finance Document, any Letter of Credit or Bank Guarantee or any other document
or security; or


 


(vii)         any insolvency or
similar proceedings.


 


(g)                                 The provisions of
this Clause 7.3 shall survive the termination of all other provisions of this
Agreement.


 


7.4                                 Letters
of Credit or Bank Guarantees to become Loans


 


(a)                                  Any amount of
principal demanded from and paid by the Issuing Bank under a Letter of Credit
or Bank Guarantee representing a Utilisation of the Revolving Facility
Commitments, subject in each case to paragraph (b) below, shall constitute a
Revolving Facility Loan made by the Issuing Bank to the relevant Revolving
Facility Borrowers severally in the same proportion as their liabilities arise
with respect to such Letter of Credit or Bank Guarantee pursuant to
Clause 7.3 (Indemnities), in
each case to the extent of the Available Commitment in relation to the
Revolving Facility at the time (for this purpose the relevant Utilisation by Letter
of Credit or Bank Guarantee being deemed not to be outstanding to the extent of
the amount demanded).


 


(b)                                 All provisions of
this Agreement relating to a Revolving Facility Loan (as applicable) and the
making thereof (including the provisions of paragraph (b) of Clause 4.2 (Further conditions precedent) and all
provisions relating to the payment of interest thereon and the repayment and
prepayment of principal thereof) shall apply to any Utilisation of a Revolving
Facility Loan referred to in paragraph (a) above. The proceeds of any such
Revolving Facility Loan shall be applied in satisfaction of the relevant
Revolving Facility Borrower’s obligations to the Lenders in respect of such
Letter of Credit or Bank Guarantee under this Agreement.


 


57





















 


7.5           Rights of contribution


 


No
Obligor will be entitled to any right of contribution or indemnity from any
Senior Finance Party in respect of any payment it may make under this Clause 7.


 


7.6           Role of the Issuing Bank


 


(a)                                  Nothing in this
Agreement constitutes the Issuing Bank as a trustee or fiduciary of any other
person.


 


(b)                                 The Issuing Bank
shall not be bound to account to any Lender for any sum or the profit element
of any sum received by it for its own account.


 


(c)                                  The Issuing Bank may
accept deposits from, lend money to and generally engage in any kind of banking
or other business with any member of the Group or any other person.


 


(d)                                 The Issuing Bank may
rely on:


 


(i)            any representation, notice or document believed
by it to be genuine, correct and appropriately authorised; and


 


(ii)           any statement made by
a director, authorised signatory or employee of any person regarding any
matters which may reasonably be assumed to be within his knowledge or within
his power to verify.


 


(e)                                  The Issuing Bank may
engage, pay for and rely on the advice or services of any lawyers, accountants,
surveyors or other experts.


 


(f)                                    The Issuing Bank may
act in relation to the Senior Finance Documents through its personnel and
agents.


 


(g)                                 The Issuing Bank is
not responsible for:


 


(i)            the adequacy, accuracy and/or completeness of
any information (whether oral or written) supplied by the Agent, the Issuing
Bank, the Mandated Lead Arrangers, an Obligor, the Security Trustee or any
other person given in or in connection with any Senior Finance Document or any
of the Information Package; or


 


(ii)           the legality,
validity, effectiveness, adequacy or enforceability of any Senior Finance
Document or any other agreement, arrangement or document entered into, made or
executed in anticipation of or in connection with any Senior Finance Document.


 


7.7           Exclusion of liability


 


(a)           Without limiting paragraph (b) below, the
Issuing Bank will not be liable for any action taken by it under or in
connection with any Senior Finance Document, unless directly caused by its
gross negligence or wilful misconduct.


 


(b)                                 No Party (other than
the Issuing Bank) may take any proceedings against any officer, employee or
agent of the Issuing Bank in respect of any claim it might have against the
Issuing Bank or in respect of any act or omission of any kind by that officer,
employee or agent in relation to any Senior Finance Document and any officer,
employee or agent of the Issuing Bank may rely on this Clause 7.7 pursuant to
the Contracts (Rights of Third Parties) Act 1999, subject to Clause 1.3 (Third Party Rights).


 


58





















 


7.8                                 Credit
appraisal by the Lenders


 


Without
affecting the responsibility of any Obligor for information supplied by it or
on its behalf in connection with any Senior Finance Document, each Lender
confirms to the Issuing Bank that it has been, and will continue to be, solely
responsible for making its own independent appraisal and investigation of all
risks arising under or in connection with any Senior Finance Document,
including but not limited to, those listed in paragraphs (a) to (d) of Clause
29.14 (Credit appraisal by the Lenders).


 


8.                                       OPTIONAL CURRENCIES


 


8.1                                 Selection
of currency


 


A
Borrower (or the Company on behalf of a Borrower) shall select the currency of
a Revolving Facility Utilisation, a Facility B Utilisation or a Facility C
Utilisation in the Utilisation Request for that Utilisation.


 


8.2                                 Unavailability
of a currency


 


If
before the Specified Time on any Quotation Day:


 


(a)                                  a Revolving Facility
Lender notifies the Agent that the Optional Currency requested is not readily
available to it in the amount required; or


 


(b)                                 a Revolving Facility
Lender notifies the Agent that compliance with its obligation to participate in
a Utilisation in the proposed Optional Currency would contravene a law or
regulation applicable to it,


 


the
Agent will give notice to the relevant Borrower to that effect by the Specified
Time on that day. In this event, any Revolving Facility Lender that gives
notice pursuant to this Clause 8.2 will be required to participate in the
Utilisation in the Base Currency (in an amount equal to that Lender’s
proportion of the Base Currency Amount or, in respect of a Rollover Loan, an amount
equal to that Lender’s proportion of the Base Currency Amount of the Rollover
Loan that is due to be made) and its participation will be treated as a
separate Utilisation denominated in the Base Currency during that Interest
Period.


 


9.                                       ANCILLARY FACILITIES


 


9.1                                 Establishment
of Ancillary Facilities


 


One
or more Ancillary Facilities may from time to time be established in favour of
one or more Revolving Facility Borrowers in accordance with this Clause 9 by
designating all or part of the Revolving Facility Commitment of a Lender as an
Ancillary Commitment.


 


9.2                                 Types
of Ancillary Facility


 


Each
Ancillary Facility may comprise any of the following (or any combination of the
following):


 


(a)                                  overdraft, cheque
clearing, automatic payment or other current account facilities;


 


(b)                                 guarantee, bonding or
documentary or standby letter of credit facilities;


 


(c)                                  derivatives
facilities for protection against or benefit from fluctuation in any rate or
price in the ordinary course of trade (and not for speculative purposes); and


 


59





















 


(d)                                 such other facilities
as may be required and as the Agent (acting reasonably) and the relevant
Ancillary Lender may agree.


 


9.3                                 Request
for Ancillary Facilities


 


(a)                                  The Company may, at
any time, request the establishment of an Ancillary Facility by delivery to the
Agent of a duly completed Ancillary Facility Request counter-signed by the
Ancillary Lender which is to make available that Ancillary Facility.


 


(b)                                 An Ancillary Facility
Request relating to a proposed Ancillary Facility will not be regarded as duly
completed unless it identifies:


 


(i)                                     the Revolving
Facility Borrower(s) under that Ancillary Facility;


 


(ii)                                  the
Ancillary Lender (which must be a Revolving Facility Lender) which is to make
available that Ancillary Facility;


 


(iii)                               the type
or types of facility to comprise that Ancillary Facility (which must comply
with Clause 9.2 (Types of Ancillary
Facility));


 


(iv)                              the date
(the “Commencement Date”) on which
that Ancillary Facility is to become available (which must be a date on which
the Revolving Facility is available to be drawn and must not be less than 10
Business Days after the date on which the Agent receives the Ancillary Facility
Request);


 


(v)                                 the expiry date of
that Ancillary Facility (which must fall on or before the Termination Date
applicable to the Revolving Facility);


 


(vi)                              the amount
of the Ancillary Commitment (which must be denominated in the Base Currency)
which is to apply to that Ancillary Facility;


 


(vii)                           the currency
or currencies (which must comply with paragraph (c) below) in which
utilisations under that Ancillary Facility may be requested;


 


(viii)                        the
margin, commitment fee and other fees payable in respect of that Ancillary
Facility; and


 


(ix)                                such other
details in relation to that Ancillary Facility as the Agent may reasonably
require.


 


(c)                                  An Ancillary Facility
shall only be available for utilisation in the Base Currency or a currency
which:


 


(i)                                     is readily available
in the amount required and freely convertible into the Base Currency in the
Relevant lnterbank Market on the date for utilisation of that Ancillary
Facility; and


 


(ii)                                  is euro or
has been approved by the Agent (acting on the instructions of the Revolving
Facility Lenders) on or prior to receipt by the Agent of the Ancillary Facility
Request for that Ancillary Facility.


 


(d)                                 The Agent shall,
promptly after receipt by it of an Ancillary Facility Request, notify each
Revolving Facility Lender of that Ancillary Facility Request.


 


60





















 


9.4                                 Grant
of Ancillary Facility


 


The
Revolving Facility Lender identified in a duly completed Ancillary Facility
Request shall become an Ancillary Lender authorised to make the proposed
Ancillary Facility available with effect from the proposed Commencement Date,
if the following conditions are fulfilled:


 


(a)                                  the proposed
Ancillary Commitment under that Ancillary Facility is equal to or less than the
Available Commitment of that Lender under the Revolving Facility on that Commencement
Date;


 


(b)                                 the proposed
Ancillary Commitment under that Ancillary Facility will not, when aggregated
with the Ancillary Commitments under all other Ancillary Facilities in effect
on that Commencement Date, exceed the Total Ancillary Limit; and


 


(c)                                  the proposed
Ancillary Lender has notified the Agent by that Commencement Date that it
agrees to make available that Ancillary Facility.


 


9.5                                 Adjustments
to Revolving Facility Commitment


 


(a)                                  The Revolving
Facility Commitment of a Lender which is an Ancillary Lender shall be reduced
by the amount of its Ancillary Commitments.


 


(b)                                 If and to the extent
that:


 


(i)            any Ancillary Facility expires, or is cancelled
(in whole or in part) in accordance with Clause 9.8 (Voluntary cancellation of Ancillary Facilities);
and


 


(ii)           no amount is or may
be payable to or by the Ancillary Lender in respect of that Ancillary Facility
(or the relevant part of it),


 


the
Revolving Facility Commitment of the relevant Lender will immediately be
increased by an amount equal to the amount of the Ancillary Commitment of that
Ancillary Facility (or, if less, that part of it which has expired or been
cancelled).


 


9.6                                 Terms
of Ancillary Facilities


 


(a)                                  The terms applicable
to each Ancillary Facility shall be as agreed between the relevant Ancillary
Lender and the relevant Borrower (as set out in the applicable Ancillary
Facility Document), provided that:


 


(i)            those terms shall be consistent with this
Clause 9 and the details set out in the Ancillary Facility Request;


 


(ii)           utilisations under an
Ancillary Facility shall be used only for the working capital purposes and/or
the general corporate purposes of the Group;


 


(iii)          the rate of interest,
fees and other remuneration in respect of the Ancillary Facility shall be based
upon the normal market rates and terms from time to time of that Ancillary
Lender; and


 


(iv)          cancellation,
termination or enforcement of the Ancillary Facility shall only occur as
described in Clause 9.8 (Voluntary
cancellation of Ancillary Facilities), Clause 11 (Prepayment and cancellation) or Clause
26.21 (Acceleration).


 


(b)                                 Any material
variation to any Ancillary Facility (including any proposed increase or
reduction in the Ancillary Commitment) shall be in accordance with and subject
to this Clause 9.


 


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(c)                                  In the case of any
inconsistency between any term of an Ancillary Facility and any term of this
Agreement, this Agreement shall prevail.


 


9.7                                 Limits
on Ancillary Facilities


 


The
Company shall ensure that:


 


(a)                                  the aggregate of all
Ancillary Commitments does not at any time exceed the Total Ancillary Limit;
and


 


(b)                                 the Ancillary
Outstandings under any Ancillary Facility do not at any time exceed the
Ancillary Commitment under that Ancillary Facility.


 


9.8                                 Voluntary
cancellation of Ancillary Facilities


 


The
Company may, if it gives the Agent and the relevant Ancillary Lender not less
than 5 Business Days’ prior notice, cancel the whole or any part of the
Ancillary Commitment under an Ancillary Facility.


 


9.9                                 Notice
in respect of Ancillary Facilities


 


(a)                                  Each Ancillary Lender
shall promptly notify the Agent of:


 


(i)                                     the establishment by
it of any Ancillary Facility and the applicable Commencement Date;


 


(ii)                                  the amount
of any Ancillary Facility which is cancelled or expires and the date of any
such cancellation or expiry; and


 


(iii)                               any other
information relating to any Ancillary Facility provided by it as the Agent may
request, including the Ancillary Outstandings from time to time.


 


(b)                                 The Agent may assume,
unless it has received notice to the contrary in its capacity as agent for the
Lenders, that no Ancillary Facility has expired or been cancelled in whole or
part.


 


(c)                                  Each Obligor consents
to all information described in paragraph (a) above being disclosed to the Senior
Finance Parties.


 


9.10                           Ancillary Outstandings


 


The
relevant Borrower under an Ancillary Facility shall repay or pay on the due
date each amount payable under that Ancillary Facility.


 


62





















 


SECTION 4


 


REPAYMENT, PREPAYMENT AND CANCELLATION


 


10.                                 REPAYMENT OF LOANS


 


10.1                           Repayment of Facility A Loans


 


(a)                                  Each Facility A
Borrower shall (and the Company shall ensure that each relevant Borrower shall)
repay those Facility A Loans so that, on each of the following dates, the
aggregate of the Facility A Loans shall be reduced by the amount set opposite
that date and that the Facility A Loans shall be repaid in full on the
Termination Date in relation to Facility A:


 


	
  Facility
  A

  Repayment Date

  	
   

  	
  Facility
  A

  Repayment Instalment

  
	
   

  	
   

  	
   

  
	
  The
  date that is:

  	
   

  	
  (amount determined by reference to the
  percentage of the Facility A Loans at the end of the Availability Period in
  relation to Facility A)

  
	
   

  	
   

  	
   

  
	
  18 Months from the Completion Date

  	
   

  	
  2.50 per cent. of the Facility A Loans

  
	
   

  	
   

  	
   

  
	
  24 Months from the Completion Date

  	
   

  	
  5.00 per cent. of the Facility A Loans

  
	
   

  	
   

  	
   

  
	
  30 Months from the Completion Date

  	
   

  	
  5.00 per cent. of the Facility A Loans

  
	
   

  	
   

  	
   

  
	
  36 Months from the Completion Date

  	
   

  	
  7.50 per cent. of the Facility A Loans

  
	
   

  	
   

  	
   

  
	
  42 Months from the Completion Date

  	
   

  	
  10.00 per cent. of the Facility A Loans

  
	
   

  	
   

  	
   

  
	
  48 Months from the Completion Date

  	
   

  	
  10.00 per cent. of the Facility A Loans

  
	
   

  	
   

  	
   

  
	
  54 Months from the Completion Date

  	
   

  	
  12.50 per cent. of the Facility A Loans

  
	
   

  	
   

  	
   

  
	
  60 Months from the Completion Date

  	
   

  	
  12.50 per cent. of the Facility A Loans

  
	
   

  	
   

  	
   

  
	
  66 Months from the Completion Date

  	
   

  	
  17.50 per cent. of the Facility A Loans

  
	
   

  	
   

  	
   

  
	
  72 Months from the Completion Date

  	
   

  	
  17.50 per cent. of the Facility A Loans

  
	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  100 per cent.

  



 


(b)                                 No Borrower may
reborrow any part of Facility A which is repaid.


 


10.2                           Repayment of Facility B Loans


 


(a)                                  Each Borrower which
has drawn a Facility B Loan shall (and the Company shall procure that each
relevant Borrower shall) repay that Loan in two equal instalments as follows:


 


(i)            the first instalment shall be paid on the date
falling 6 months before the Facility B Repayment Date and, if it is not a
Business Day, on the immediately preceding Business Day; and


 


(ii)           the second instalment
shall be paid on the Facility B Repayment Date.


 


(b)                                 No Borrower may
reborrow any part of Facility B which is repaid.


 


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10.3                           Repayment of Facility C Loans


 


(a)                                  Each Borrower which
has drawn a Facility C Loan shall (and the Company shall procure that each
relevant Borrower shall) repay that Loan in two equal instalments as follows:


 


(i)                                     the first instalment
shall be paid on the date falling 6 months before the Facility C Repayment Date
and, if it is not a Business Day, on the immediately preceding Business Day;
and


 


(ii)                                  the second
instalment shall be paid on the Facility C Repayment Date.


 


10.4                           Repayment of Capex Facility Loans


 


(a)                                  Each Borrower which
has drawn a Capex Facility Loan shall (and the Company shall ensure that each
relevant Borrower shall) repay those Capex Facility Loans so that, on each of
the following dates, the aggregate of the Capex Facility Loans shall be reduced
by the amount set opposite that date and that the Capex Facility Loans shall be
repaid in full on the Termination Date in relation to Capex Facility:


 


	
  Capex
  Facility

  Repayment Date

  	
   

  	
  Capex
  Facility

  Repayment Instalment

  
	
   

  	
   

  	
   

  
	
  The
  date that is:

  	
   

  	
  (amount determined by reference to the
  percentage of the Capex Facility Loans at the end of the Availability Period
  in relation to Capex Facility)

  
	
   

  	
   

  	
   

  
	
  42
  Months from the Completion Date

  	
   

  	
  16 per cent. of the Capex Facility Loans

  
	
   

  	
   

  	
   

  
	
  48
  Months from the Completion Date

  	
   

  	
  17 per cent. of the Capex Facility Loans

  
	
   

  	
   

  	
   

  
	
  54
  Months from the Completion Date

  	
   

  	
  16 per cent. of the Capex Facility Loans

  
	
   

  	
   

  	
   

  
	
  60
  Months from the Completion Date

  	
   

  	
  17 per cent. of the Capex Facility Loans

  
	
   

  	
   

  	
   

  
	
  66
  Months from the Completion Date

  	
   

  	
  17 per cent. of the Capex Facility Loans

  
	
   

  	
   

  	
   

  
	
  72
  Months from the Completion Date

  	
   

  	
  17 per cent. of the Capex Facility Loans

  
	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  100 per cent.

  



 


(b)                                 No Borrower may
reborrow any part of the Capex Facility which is repaid.


 


10.5                           Repayment of Revolving Facility Loans


 


(a)                                  Each Borrower which
has drawn a Revolving Facility Loan shall repay that Loan on the last day of
its Interest Period.


 


(b)                                 Any Revolving
Facility Loan remaining outstanding on the Termination Date applicable to the
Revolving Facility shall be repaid on that date.


 


(c)                                  Each Borrower shall
provide full cash cover in respect of each Letter of Credit or Bank Guarantee
requested by that Borrower on the Termination Date applicable to the Revolving
Facility.


 


64





















 


10.6                           Repayment of Ancillary Facilities


 


On
the Termination Date applicable to the Revolving Facility, each Borrower under
an Ancillary Facility:


 


(a)                                  shall repay all
amounts (if any) owing or outstanding under that Ancillary Facility; or


 


(b)                                 shall provide full
cash cover in respect of any contingent liability of the Ancillary Lender under
that Ancillary Facility.


 


11.                                 PREPAYMENT AND CANCELLATION


 


11.1                           Illegality


 


If
after the date of this Agreement it becomes (or any change in the
interpretation, administration or application of any law makes it apparent that
it is) unlawful in any jurisdiction for a Lender, the Issuing Bank or an
Ancillary Lender to perform any of its obligations as contemplated by this
Agreement or, in the case of an Ancillary Lender, any Ancillary Facility
Document, or to fund its participation in any Utilisation or, in the case of an
Ancillary Lender, any Utilisation under any Ancillary Facility:


 


(a)                                  that Lender, the
Issuing Bank or, as the case may be, that Ancillary Lender shall promptly
notify the Agent upon becoming aware of that event;


 


(b)                                 upon the Agent
notifying the Company, the Commitment of that Lender or, as the case may be,
the Commitment of that Ancillary Lender under that Ancillary Facility will be
immediately cancelled or, as the case may be, the Issuing Bank shall not be
obliged to issue any Letter of Credit or Bank Guarantee or that Ancillary
Lender shall not be obliged to issue any guarantee, bond or letter of credit
under that Ancillary Facility;


 


(c)                                  each Borrower shall:


 


(i)                                     repay that Lender’s
participation in the Utilisations made to that Borrower on the last day of the
Interest Period for each Utilisation occurring after the Agent has notified the
Company or, if earlier, the date specified by the Lender in the notice
delivered to the Agent (being no earlier than the last day of any applicable
grace period permitted by law); and


 


(ii)                                  provide
full cash cover in respect of that Lender’s participation in each Letter of
Credit or Bank Guarantee or, as the case may be, the Issuing Bank’s maximum
contingent liability under each Letter of Credit and Bank Guarantee requested
by that Borrower on the Expiry Date of each such Letter of Credit and Bank
Guarantee or, if earlier, the date specified by the Lender or the Issuing Bank,
as the case may be, in the notice delivered to the Agent (being no earlier than
the last day of any applicable grace period permitted by law); and/or


 


(d)                                 each Borrower shall
repay each amount payable or, as the case may be, provide full cash cover in
respect of each contingent liability under each Ancillary Facility of that
Ancillary Lender on the next due date occurring after the Agent has notified
the Company or, if earlier, the date specified by the Ancillary Lender in the
notice delivered to the Agent (being no earlier than the last day of any
applicable grace period permitted by law).


 


65





















 


11.2                           Flotation, Change of Control and Sale


 


(a)                                  In this Clause 11.2:


 


(i)                                     a “Change of Control” will occur if:


 


(A)                              the Original
Investors set out in paragraphs (a) and (b) of the definition of Original
Investors cease to hold (whether directly or indirectly through any person)
beneficially in aggregate more than 50 per cent. of the issued share capital of
the Company or issued share capital of the Company having the right to cast
more than 50 per cent. of the votes capable of being cast in general
meetings of the Company (disregarding for these purposes any of the issued
share capital of the Company constituted by shares which have been issued under
the Bridge Facility Warrant Instrument);


 


(B)                                the Original Investors
set out in paragraphs (a) and (b) of the definition of Original Investors cease
to hold beneficially the right to determine the composition of the majority of
the board of directors or equivalent body of the Company; or


 


(C)                                the Original
Investors set out in paragraphs (a) and (b) of the definition of Original
Investors cease to control (as defined in section 416(2) of the Taxes Act) the
Company;


 


(ii)                                  “Flotation” means a flotation of any part of
the share capital of the Company (or, if applicable, any other ultimate Holding
Company of the Group) on any investment exchange or issue by way of flotation
or public offering or any equivalent circumstances in relation to the Company
(or that other ultimate Holding Company (as appropriate)) in any jurisdiction
immediately following which the Original Investors set out in paragraphs (a)
and (b) of the definition of Original Investors continue to hold (whether
directly or indirectly through any person) beneficially in aggregate more than
50 per cent. of the issued share capital of the Company and issued share
capital having the right to cast more than 50 per cent. of the votes
capable of being cast in general meetings of the Company (disregarding for
these purposes any of the issued share capital of the Company constituted by
shares which have been issued under the Bridge Facility Warrant Instrument).


 


(iii)                               “ORBIT Flotation” means a Flotation of up to
one-sixth of the share capital of the Company (or any other ultimate Holding
Company of the Group) solely conducted for the purpose of complying with the
Open-market Reorganisation for the Betterment of International
Telecommunications Act of the United States of America.


 


(iv)                              “Net Flotation Proceeds” means the cash proceeds (including, when
received, the cash proceeds of any deferred consideration, whether by way of
adjustment to the purchase price or otherwise) received by a member of the
Group in connection with a Flotation after deducting:


 


(A)                              fees and reasonable
transaction costs and expenses incurred in connection with that sale, transfer
or disposal; and


 


(B)           Taxes paid or reasonably estimated by the
relevant member of the Group to be payable as a result of that Flotation.


 


66





















 


(v)           “Sale”
means a disposal (whether in a single transaction or a series of related
transactions) of all or substantially all of the assets of the Group or the
Company.


 


(b)                                 If a Flotation
occurs:


 


(i)            the Company shall promptly notify the Agent
upon becoming aware of that event;


 


(ii)           if (A) such Flotation
is not an ORBIT Flotation and immediately after such Flotation the credit
rating of Newco is BBB- (as rated by Standard & Poor’s Ratings Group) and
Baa3 (as rated by Moody’s Investors Service, Inc.) or better or (B) such
Flotation is an ORBIT Flotation, then the Company shall ensure that any Net
Flotation Proceeds are applied in accordance with Clause 11.9 (Application of Proceeds); and


 


(iii)          if such Flotation is
not an ORBIT Flotation and immediately after such Flotation the credit rating
of Newco is less than BBB- (as rated by Standard & Poor’s Ratings Group) or
Baa3 (as rated by Moody’s Investors Service, Inc.):


 


(A)          no Borrower may request a Utilisation or
utilise an Ancillary Facility; and


 


(B)           the Facilities shall immediately be cancelled
and all outstanding Utilisations and Ancillary Outstandings, together with
accrued interest, and all other amounts accrued under the Senior Finance
Documents and the Hedging Documents shall become immediately due and payable,
and full cash cover in respect of each Letter of Credit and Bank Guarantee and
each guarantee, bond or letter of credit issued under any Ancillary Facility
shall become immediately due and payable.


 


(c)                                  If a Change of
Control or Sale occurs:


 


(i)                                     the Company shall
promptly notify the Agent upon becoming aware of that event;


 


(ii)                                  no
Borrower may request a Utilisation or utilise an Ancillary Facility; and


 


(iii)                               the
Facilities shall immediately be cancelled and all outstanding Utilisations and
Ancillary Outstandings, together with accrued interest, and all other amounts
accrued under the Senior Finance Documents and the Hedging Documents shall
become immediately due and payable, and full cash cover in respect of each
Letter of Credit and Bank Guarantee and each guarantee, bond or letter of
credit issued under any Ancillary Facility shall become immediately due and
payable.


 


11.3                           Mandatory cancellation


 


(a)                                  If:


 


(i)            the Completion Date does not occur within 180
days of the date of this Agreement; or


 


(ii)           prior to the
Completion Date, the European Commission initiates proceedings in respect of
the Acquisition under Article 6(1)(c) of Council Regulation (EEC) 4064/89 or
makes a referral in respect of the Acquisition to a competent authority of the
United Kingdom under Article 9(3) of that regulation and there is a subsequent
referral to the Competition Commission before (in each case) the meeting
referred to in paragraph (iv) below; or


 


(iii)          the Scheme of
Arrangement is withdrawn by the Target or Newco’s offer for the Target
otherwise is withdrawn or lapses; or


 


67





















 


(iv)                              in any
meeting of shareholders (or class of shareholders) of the Target held under
section 425 of the Companies Act 1985 to consider the Scheme of Arrangement (or
any adjournment thereof), the requisite number of shareholders (or class of
shareholders) of the Target required by that section to pass the Scheme of
Arrangement does not vote in favour of the Scheme of Arrangement;


 


(v)                                 the resolutions
required to approve and implement the Scheme of Arrangement are not passed at
the extraordinary general meeting of the shareholders of the Target convened to
consider those resolutions (or any adjournment thereof),


 


all
the Commitments will be immediately and automatically cancelled.


 


(b)                                 Any part of the
Commitments not borrowed or utilised under this Agreement shall be cancelled
automatically on the close of business on the expiry of the relevant
Availability Period.


 


11.4                           Voluntary cancellation


 


(a)                                  The Company may, if
it gives the Agent not less than 5 Business Days’ (or such shorter period as
the Majority Facility A Lenders, Majority Facility B Lenders, Majority Facility
C Lenders, Majority Capex Facility Lenders or the Majority Revolving Lenders
(as appropriate) may agree) prior notice, cancel the whole or any part (being a
minimum amount of $2,000,000 (or its equivalent in another currency or
currencies) or an integral multiple thereof) of the Available Facility under
the relevant Term Facility, the Available Facility under the Capex Facility or
the Available Facility under the Revolving Facility. Any cancellation under
this Clause 11.4:


 


(i)                                     in respect of the
Term Facility, shall reduce the Available Facility under each Term Facility in
the proportion that the Available Facility under the relevant Term Facility
bears to the Available Facility under the aggregate of each Term Facility; and


 


(ii)                                  in respect
of any Facility, shall reduce the Commitment of each Lender rateably under that
Facility.


 


(b)                                 No notice of
cancellation of all or any part of the Revolving Facility shall be effective
unless, at the time of the relevant cancellation either (A) no amount remains
outstanding, or is capable of becoming outstanding, under the Term Facilities
or (B) the Company has provided evidence satisfactory to the Agent (acting
reasonably) demonstrating that the Group has (and will have) adequate working
capital available to it for the remainder of the life of the Term Facilities.


 


11.5                           Mandatory prepayment from Net Sale Proceeds


 


(a)                                  In this Clause 11:


 


“Net Sale Proceeds” means the cash proceeds
(including, when received, the cash proceeds of any deferred consideration,
whether by way of adjustment to the purchase price or otherwise) received by a
member of the Group in connection with the sale, transfer or other disposal by
any member of the Group of an asset (other than as set out in sub-paragraphs
(a), (b), (c), (d), (e), (h),  (i), (j),
(k), (l) and (n) of the definition of Permitted Disposal) after deducting:


 


(i)            fees and reasonable transaction costs and
expenses incurred in connection with that sale, transfer or disposal;


 


68





















 


(ii)           Taxes paid or
reasonably estimated by the relevant member of the Group to be payable as a
result of that sale, transfer or disposal or upstreaming of the Net Sale
Proceeds to the Borrowers to meet their mandatory prepayment obligations under
this Agreement;


 


(iii)          such amount as is
reasonably required as a provision against warranty or indemnity claims arising
as a result of that sale, transfer or other disposal; and


 


(iv)          any amount required
to discharge any Permitted Financial Indebtedness (including any applicable
prepayment or cancellation fee) which any member of the Group is contractually
obliged to discharge in relation to such asset disposal.


 


(b)                                 The Company shall
ensure that any Net Sale Proceeds are applied in accordance with
Clause 11.9 (Application of Proceeds).


 


(c)                                  The obligation in
Clause 11.9 (Application of Proceeds)
to apply such Net Sale Proceeds in prepayment does not apply to any Net Sale
Proceeds to the extent that such Net Sale Proceeds are, within 12 months of
receipt, applied or contractually committed to be applied for reinvestment in
or towards fixed assets required for use in connection with the business of the
Group.


 


(d)                                 The obligation in
Clause 11.9 (Application of Proceeds)
to apply such Net Sale Proceeds in prepayment in relation to the disposal set
out in paragraph (l) of the definition of Permitted Disposal shall only apply
to such Net Sale Proceeds to the extent that they amount to up to 4.2 times the
annual rent payable by the Group on the City Road Property as a result of such
a disposal or, if higher, 50% of such Net Sale Proceeds.


 


11.6                           Mandatory prepayment from Insurance Proceeds


 


(a)                                  In this Clause 11:


 


“Insurance Proceeds” means any proceeds
(other than in relation to third party or public liability policies that are
actually applied to meet such liabilities or consequential loss policies that
are actually applied to cover operating losses) received by any member of the
Group under or pursuant to any insurance policy (or equivalent) after the date
of this Agreement.


 


(b)                                 The Company shall
ensure that any Insurance Proceeds are applied in accordance with
Clause 11.9 (Application of Proceeds).


 


(c)                                  Paragraph (b) does
not apply to any Insurance Proceeds to the extent that the Insurance Proceeds
received by members of the Group in any financial year of the Company do not in
aggregate exceed $1,000,000 (or its equivalent in another currency or
currencies).


 


(d)                                 The obligation in
Clause 11.9 (Application of Proceeds)
to apply such Insurance Proceeds in prepayment does not apply to any Insurance
Proceeds to the extent that such Insurance Proceeds are, within 12 months of
receipt, applied or contractually committed to be applied to replace, repair or
reinstate the asset(s) to which those proceeds relate or for reinvestment in or
towards fixed assets required for use in connection with the business of the
Group .


 


(e)                                  The obligation in
Clause 11.9 (Application of Proceeds)
to apply such Insurance Proceeds in prepayment does not apply to any Insurance
Proceeds relating to the I4 Programme to the extent that such Insurance
Proceeds are, within 12 months of receipt, committed to be applied (i) in the
case of the first loss (or partial loss) of an I4 Satellite, in construction of
a new launch


 


69





















 


vehicle
for the F-3 I4 Satellite and (ii) in the case of any subsequent loss (or
partial loss) of an I4 Satellite, in the construction of a new I4 Satellite and
a new launch vehicle for such new I4 Satellite and insurances in relation to
such new I4 Satellite.


 


(f)                                    The obligation in
Clause 11.9 (Application of Proceeds)
to apply such Insurance Proceeds in prepayment does not apply to any Insurance
Proceeds relating to an I3 Satellite to the extent that such Insurance Proceeds
are promptly applied in purchasing further insurance for the Group’s fleet of
I3 Satellites.


 


11.7                           Mandatory prepayment from Net Recovery Proceeds


 


(a)                                  In this Clause 11:


 


“Net Recovery Proceeds” means any amount
received or recovered by a member of the Group pursuant to or in respect of any
Report or related reliance letter or any breach of contract, warranty claim or
legal action or proceedings in respect of such Report or reliance letter
(whether by way of judgment on or settlement of such claim) (in each case net
of Tax and any reasonable fees and reasonable transaction costs and expenses
incurred in achieving any such recoveries).


 


(b)                                 The Company shall
ensure that any Net Recovery Proceeds are applied in accordance with
Clause 11.9 (Application of Proceeds).


 


(c)                                  Paragraph (b) does
not apply to any Net Recovery Proceeds to the extent that the Net Recovery
Proceeds received by members of the Group in any financial year of the Company
do not in aggregate exceed $1,000,000 (or its equivalent in another currency or
currencies).


 


(d)                                 The obligation in
Clause 11.9 (Application of Proceeds)
to apply such Net Recovery Proceeds in prepayment does not apply to any Net
Recovery Proceeds to the extent that such Net Recovery Proceeds are, within 12
months of receipt, contractually committed to be applied to replace, reinstate
or invest in assets or meet liabilities in each case in respect of which those
proceeds relate (including payment of Tax) or for reinvestment in or towards
fixed assets required for use in connection with the business of the Group.


 


11.8                           Mandatory prepayment of Surplus Cashflow


 


(a)                                  Within 14 days of
delivery to the Agent of the Company’s audited consolidated financial
statements for:


 


(i)                                     the financial year of
the Company ended 31 December 2005; and


 


(ii)                                  each
financial year of the Company thereafter,


 


the
Company shall ensure that an amount equal to 50 per cent. of the Surplus Cashflow
in respect of (A) the 24 months to 31 December 2005 (in the case of the
delivery of audited consolidated financial statements of the Company for the
financial year ended 31 December 2005) or (B) that financial year (in the case
of the delivery of audited consolidated financial statements of the Company for
each financial year after that ending on 31 December 2005) is applied (in each
case) in accordance with Clause 11.9 (Application
of Proceeds).


 


(b)                                 For the avoidance of
doubt, notwithstanding the other terms of this Agreement, the Group shall be
entitled to use Retained Cash to fund Capital Expenditure (or acquire
businesses where the


 


70





















 


acquisition
of the assets of such businesses would be treated as Capital Expenditure if
such assets had been directly acquired by the Group).


 


11.9                           Application of Proceeds


 


(a)                                  The amount required
to be mandatorily prepaid under Clause 11.8 (Mandatory
prepayment of Surplus Cashflow) shall, at the discretion of the Company,
be applied firstly in prepayment of the next 4 Facility A Repayment Instalments
until each is reduced to the amount which is 50 per cent. of the original
scheduled amount of such Facility A Repayment Instalment, and shall thereafter
be applied to satisfy the obligations under Clause 10.1 (Repayment of Facility A Loans) in respect
of the remaining Facility A Repayment Instalments pro rata, otherwise such
amounts shall be applied in accordance with the remaining paragraphs of this
Clause 11.9.


 


(b)                                 The Proceeds and,
subject to paragraph (a) above the amount of Surplus Cashflow (if any) required
to be mandatorily prepaid under this Clause 11.9, shall, subject to paragraph
(f) below, be applied in the following order, in each case until the relevant
Utilisations or other liabilities have been satisfied in full. In relation to
Loans, such application shall be made on the last day of the Interest Period
relating to the relevant Loan, unless the Company gives the Agent 5 days’
prior written notice to make such payment before the last day of such Interest
Period:


 


(i)                                     first, in prepayment
of the Facility A Repayment Instalments, the Facility B Repayment Instalments
and Facility C Repayment Instalments pro rata;


 


(ii)                                  second, in
prepayment of Capex Facility Repayment Instalments;


 


(iii)                               third, in
prepayment of Revolving Credit Utilisations and Ancillary Outstandings pro
rata; and


 


(iv)                              fourth, in
reduction of any undrawn Revolving Facility Commitments and Ancillary
Commitments pro rata.


 


(c)                                  If the Facility A
Loans have not been repaid or prepaid in full, any Facility B Lender or
Facility C Lender, as the case may be (each such Lender being in this Clause
11.9 an “Exempt Lender”), may by 5
Business Days’ notice to the Agent prior to the relevant prepayment, waive its
rights to prepayment (in whole or in part) of any Facility B Loan or, as the
case may be, Facility C Loan under paragraph (b)(i) above. If any Exempt Lender
delivers such a notice, the amount in respect of which the relevant Exempt
Lender has waived its right to prepayment shall be applied as follows:


 


(i)            first, to Lenders participating in the same
Facility as the Exempt Lender (other than other Exempt Lenders under that
Facility) in prepayment of their participation in that Facility;


 


(ii)           second, to the
Facility A Lenders in prepayment of the Facility A Repayment Instalments pro
rata; and


 


(iii)          third, to the
Facility B Lenders and the Facility C Lenders in prepayment of the Facility B
Repayment Instalments and the Facility C Instalments pro rata.


 


(d)                                 If any amount is
applied in accordance with sub-paragraph (iii) or (iv) of paragraph (b)
above, the Revolving Facility Commitments and Ancillary Commitments shall
immediately be cancelled by that amount. Any cancellation shall apply to the
Revolving Facility Commitment of each


 


71





















 


Revolving
Facility Lender and Ancillary Commitment of each Ancillary Lender on a pro rata
basis.


 


(e)                                  The Commitments of
the Lenders under the relevant Facility shall be reduced rateably by the
prepayment made under this Clause 11.9.


 


(f)                                    Any prepayment under
this Clause 11.9:


 


(i)            subject to paragraph (a), in respect of
Facility A Loans shall satisfy the obligations under Clause 10.1 (Repayment of Facility A Loans) in respect
of the remaining Facility A Repayment Instalments pro rata;


 


(ii)           in respect of
Facility B Loans shall satisfy the obligations under Clause 10.2 (Repayment of Facility B Loans) in respect
of the remaining Facility B Repayment Instalments pro rata;


 


(iii)          in respect of
Facility C Loans shall satisfy the obligations under Clause 10.3 (Repayment of Facility C Loans) in respect
of the remaining Facility C Repayment Instalments pro rata; and


 


(iv)          in respect of Capex
Facility Loans shall satisfy the obligations under Clause 10.4 (Repayment of Capex Facility Loans) in
respect of the remaining Capex Facility Repayment Instalments pro rata.


 


(g)                                 No mandatory
prepayment shall be required under this Clause 11.9 if:


 


(i)                                     it would be unlawful
to do so or in order to do so moneys need to be upstreamed or transferred from
one Group Company to another Group Company and these monies cannot be so
upstreamed or transferred without breaching a financial assistance restriction
or prohibition or other legal restriction or prohibition applicable to any
Group Company (or any of its directors); or


 


(ii)                                  the making
of such payment would result in the incurring of arm’s length transmission or
foreign exchange costs or Taxes to the applicable member(s) of the Group which,
in aggregate, exceed 5 per cent. of the amount which would otherwise be due to
be prepaid,


 


in
each case, provided that the relevant member(s) of the Group have used all
reasonable endeavours to avoid such unlawfulness and to facilitate cash
movement within the Group to enable the prepayment to be made, until the
relevant impediment, restriction or prohibition no longer applies.


 


(h)                                 If Facility A Loans
are prepaid in full under this Clause 11.9 then the Company shall ensure that,
at the time of such prepayment in full all Revolving Credit Utilisations and
Ancillary Outstandings are prepaid in full (together with accrued interest and
all other amounts accrued under the Senior Finance Documents in respect of the
Revolving Credit Facility and the Ancillary Facilities) at which time the
Revolving Credit Utilisations and Ancillary Outstandings shall become
immediately due and payable, and full cash cover in respect of each Letter of
Credit and Bank Guarantee and each guarantee, bond or letter of credit issued
under any Ancillary Facility shall become immediately due and payable,


 


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11.10       Voluntary
prepayment of Term Loans and Capex Facility Loans


 


(a)                                  The Company and the
relevant Borrowers may, if it gives the Agent not less than 5 Business
Days’ (or such shorter period as the Majority Facility A Lenders, the Majority
Facility B Lenders, the Majority Facility C Lenders and/or, as the case may be,
the Majority Capex Facility Lenders may agree) prior notice, prepay (i) Term
Loans (in the same proportion that Loans under the relevant Term Facility bear
to all the Term Loans) and (ii) Capex Facility Loans, provided that no such
prepayment of the Capex Facility Loans may be made until all Term Loans have
been repaid or prepaid in full.


 


(b)                                 If the Facility A
Loans have not been repaid or prepaid in full, any Facility B Lender or
Facility C Lender, as the case may be (each such Lender being in this Clause
11.10 an “Exempt Lender”), may by
5 Business Days’ notice to the Agent prior to the relevant prepayment, waive
its rights to prepayment (in whole or in part) of any Facility B Loan or, as
the case may be, Facility C Loan under paragraph (b)(i) above.  If any Exempt Lender delivers such a notice,
the amount in respect of which the relevant Exempt Lender has waived its right
to prepayment shall be applied as follows:


 


(i)            first, to Lenders participating in the same
Facility as the Exempt Lender (other than other Exempt Lenders under that
Facility) in prepayment of their participation in that Facility;


 


(ii)           second, to the
Facility A Lenders in prepayment of the Facility A Repayment Instalments pro
rata; and


 


(iii)          third, to the
Facility B Lenders and the Facility C Lenders in prepayment of the Facility B
Repayment Instalments and the Facility C Instalments pro rata.


 


(c)                                  Any prepayment of
Facility A Loans under this Clause 11.10 may, at the discretion of the Company,
be applied firstly in prepayment of the next 4 Facility A Repayment Instalments
until each is reduced to the amount which is 50 per cent. of the original
scheduled amount of such Facility A Repayment Instalment, and shall thereafter
be applied to satisfy the obligations under Clause 10.1 (Repayment of Facility A Loans) in respect
of the remaining Facility A Repayment Instalments pro rata.


 


(d)                                 Any prepayment under
this Clause 11.10:


 


(i)            subject to paragraph (c), in respect of
Facility A Loans shall satisfy the obligations under Clause 10.1 (Repayment of Facility A Loans) in respect
of the remaining Facility A Repayment Instalments pro rata;


 


(ii)           in respect of
Facility B Loans shall satisfy the obligations under Clause 10.2 (Repayment of Facility B Loans) in respect
of the remaining Facility B Repayment Instalments pro rata;


 


(iii)          in respect of
Facility C Loans shall satisfy the obligations under Clause 10.3 (Repayment of Facility C Loans) in respect
of the remaining Facility C Repayment Instalments pro rata; and


 


(iv)          in respect of Capex
Facility Loans shall satisfy the obligations under Clause 10.4 (Repayment of Capex Facility Loans) in
respect of the remaining Capex Facility Repayment Instalments pro rata.


 


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(e)                                  Term Loans may only
be voluntarily prepaid after the last day of the Availability Period for the
applicable Term Facility (or, if earlier, the day on which the Available
Facility for the applicable Term Facility is zero).


 


(f)                                    Capex Facility Loans
may only be voluntarily prepaid after the last day of the Availability Period
for the Capex Facility (or, if earlier, the day on which the Available Facility
for the Capex Facility is zero).


 


(g)                                 If Facility A Loans
are prepaid in full under this Clause 11.10 then the Company shall ensure that,
at the time of such prepayment in full all Revolving Credit Utilisations and
Ancillary Outstandings are prepaid in full (together with accrued interest and
all other amounts accrued under the Senior Finance Documents in respect of the
Revolving Credit Facility and the Ancillary Facilities) at which time the
Revolving Credit Utilisations and Ancillary Outstandings shall become
immediately due and payable, and full cash cover in respect of each Letter of
Credit and Bank Guarantee and each guarantee, bond or letter of credit issued
under any Ancillary Facility shall become immediately due and payable,


 


11.11                     Voluntary prepayment of Revolving Facility Loans


 


The
Borrower to which a Revolving Facility Loan has been made may, if it gives the
Agent not less than 5 Business Days’ (or such shorter period as the Majority
Revolving Lenders may agree) prior notice, prepay the whole or any part of a
Revolving Facility Loan (but if in part, being an amount that reduces the Base
Currency Amount of the Revolving Facility Loan by a minimum amount of
$1,000,000).


 


11.12                     Right of replacement of a single Lender


 


If:


 


(a)                                  any sum payable to
any Lender by an Obligor is required to be increased under paragraph (c) of
Clause 16.2 (Tax gross-up);


 


(b)                                 any Lender or Issuing
Bank claims indemnification from Newco under Clause 16.3 (Tax and Expenses Indemnity) or Clause 17.1
(Increased Costs); or


 


(c)


 


(A)                              the Company or an
Obligor requests an amendment or waiver which requires the consent of all of
the Lenders; and


 


(B)                                the Majority Lenders
have consented to that amendment or waiver; but


 


(C)                                a Lender has not
consented to that amendment or waiver,


 


the
Company may:


 


(i)                                     whilst the
circumstance giving rise to the requirement or indemnification continues or the
request for an amendment or waiver request is outstanding (as appropriate),
arrange for the transfer at par of the whole (but not part only) of that
Lender’s Commitment and participations in the Utilisations and its Ancillary
Commitment (if any) and Ancillary Outstandings under its Ancillary Facility to
a new or existing Lender willing to accept that transfer and acceptable to the
Company and the remaining Lenders of the relevant Facility; or


 


74





















 


(ii)                                  with the
prior consent of all the other Lenders, give the Agent notice of cancellation
of the Commitment of that Lender and its intention to procure the repayment of
that Lender’s participation in the Utilisations and utilisations of any
Ancillary Facility granted by that Lender, whereupon the Commitment of that
Lender and its Ancillary Commitment (if any) shall immediately be reduced to
zero or, in the case of the Issuing Bank, give the Agent notice that the
Issuing Bank shall not be obliged to issue any Letter of Credit or Bank
Guarantee and its intention to procure the provision of full cash cover in
respect of the Issuing Bank’s maximum contingent liability under each Letter of
Credit and Bank Guarantee outstanding. On the last day of each Interest Period
which ends after the Company has given notice under this paragraph (ii) (or, if
earlier, the date specified by the Company in that notice), each Borrower to
which a Utilisation or utilisation of an Ancillary Facility, as the case may
be, is outstanding shall repay that Lender’s participation in that Utilisation
or utilisation of an Ancillary Facility granted by that Lender or, as the case
may be, provide full cash cover in respect of any Letter of Credit or Bank
Guarantee issued by the Issuing Bank or any contingent liability of that Lender
under an Ancillary Facility.


 


11.13                     Replacement of a Lender


 


(a)                                  The replacement of a
Lender pursuant to Clause 11.12 (Right of
replacement of a single Lender) shall be subject to the following
conditions:


 


(i)            no Senior Finance Party shall have any
obligation to find a replacement Lender;


 


(ii)           any Lender replaced
pursuant to Clause 11.12 (Right of
replacement of a single Lender) shall not be required to refund, or
to pay or surrender to any other Lender, any of the fees or other amounts
received by that Lender under any Senior Finance Document; and


 


(iii)          any replacement
pursuant to Clause 11.12 (Right of
replacement of a single Lender) of a Lender which is the Agent or
the Security Trustee shall not affect its role as the Agent or the Security
Trustee;


 


(iv)          no transfer of a
Lender’s Commitment under the Revolving Credit Facility may be made without the
consent of the Issuing Bank in accordance with Clause 27.7 (Revolving Facility assignments and transfers);
and


 


(v)           Newco shall promptly on demand pay to the
Lender who is replaced and the Agent all reasonable costs and expenses
(including legal fees) incurred by any of them in connection with such
transfer.


 


11.14                     Restrictions


 


(a)                                  Any notice of
cancellation or prepayment given by any Party under this Clause 11 shall
be irrevocable and, unless a contrary indication appears in this Agreement,
specify the date or dates upon which the relevant cancellation or prepayment is
to be made and the amount of that cancellation or prepayment.


 


(b)                                 Any prepayment under
this Agreement shall be made together with accrued interest on the amount
prepaid and, subject to any Break Costs, without premium or penalty.


 


(c)                                  No Borrower may
reborrow any part of a Term Facility or the Capex Facility which is prepaid.


 


75





















 


(d)                                 Unless a contrary
indication appears in this Agreement, any part of the Revolving Facility which
is prepaid may be reborrowed in accordance with the terms of this Agreement.


 


(e)                                  No Borrower shall
repay or prepay all or any part of the Utilisations or cancel all or any part
of the Commitments except at the times and in the manner expressly provided for
in this Agreement.


 


(f)                                    Unless a contrary
indication appears in this Agreement, no amount of the Total Commitments
cancelled under this Agreement may be subsequently reinstated.


 


(g)                                 If the Agent receives
a notice under this Clause 11 it shall promptly forward a copy of that notice
to either the Company or the affected Lender, as appropriate.


 


(h)                                 Where any member of
the Group is in receipt of Proceeds then those Proceeds shall, pending
prepayment under this Clause 11 or other application by the Group in accordance
with the terms of this Agreement, be credited to a bank account held with the
Security Trustee and charged to the Security Trustee (on behalf of the Senior
Finance Parties) on terms satisfactory to it (a “Proceeds Account”). No amount may be withdrawn or transferred
from a Proceeds Account except:


 


(i)                                     to make the
prepayments required under this Clause 11 or for other application by the Group
as permitted by this Agreement; or


 


(ii)                                  with the
prior consent of the Majority Lenders.


 


11.15                     Clean Down


 


(a)                                  The Company shall
ensure that for a period of at least 5 consecutive Business Days (each a “Clean Down Period”) during the 12-month
period commencing on the Completion Date and thereafter during each subsequent
12-month period the aggregate of:


 


(i)            all Revolving Facility Loans outstanding under
the Revolving Facility; plus


 


(ii)           all amounts
outstanding under any Ancillary Facility by way of overdraft or other cash
drawing; plus


 


(iii)          all amounts outstanding
under any Letter of Credit or Bank Guarantee issued under the Revolving
Facility or any guarantee, bond or letter of credit issued under any Ancillary
Facility where provided in support of actual Financial Indebtedness of any
member of the Group on a loan or current account (to the extent that such
Financial Indebtedness has been drawn and not repaid or prepaid); minus


 


(iv)          Cash and Cash
Equivalent Investments of the Group (but not including amounts standing to the
credit of the Overfunding Account),


 


shall
not exceed zero.


 


(b)                                 The Company shall
ensure that consecutive Clean Down Periods shall not be effected in consecutive
calendar months.


 


(c)                                  The Company shall
notify the Agent at least 5 Business Days before the start of any period in
which it is intended to effect a Clean Down Period.


 


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SECTION 5


 


COSTS OF UTILISATION


 


12.                                 INTEREST


 


12.1                           Calculation of interest


 


The
rate of interest on each Loan for each Interest Period is the percentage rate
per annum which is the aggregate of the applicable:


 


(a)                                  Margin;


 


(b)                                 LIBOR or, in relation
to any Loan in euro, EURIBOR; and


 


(c)                                  Mandatory Cost, if
any.


 


12.2                           Payment of interest


 


The
Borrower to which a Loan has been made shall pay accrued interest on that Loan
on the last day of each Interest Period (and, if the Interest Period is longer
than 6 Months, on the dates falling at 6-monthly intervals after the first day
of the Interest Period).


 


12.3                           Default interest


 


(a)                                  If an Obligor fails
to pay any amount payable by it under a Senior Finance Document on its due
date, interest shall accrue on the overdue amount from the due date up to the
date of actual payment (both before and after judgment) at a rate which,
subject to paragraph (b) below, is the sum of 1 per cent. and the rate
which would have been payable if the overdue amount had, during the period of
non-payment, constituted a Loan in the currency of the overdue amount for
successive Interest Periods, each of a duration selected by the Agent (acting
reasonably). Any interest accruing under this Clause 12.3 shall be immediately
payable by the Obligor on demand by the Agent.


 


(b)                                 If any overdue amount
consists of all or part of a Loan which became due on a day which was not the
last day of an Interest Period relating to that Loan:


 


(i)            the first Interest Period for that overdue
amount shall have a duration equal to the unexpired portion of the current
Interest Period relating to that Loan; and


 


(ii)           the rate of interest
applying to the overdue amount during that first Interest Period shall be the
sum of 1 per cent. and the rate which would have applied if the overdue
amount had not become due.


 


(c)                                  Default interest (if
unpaid) arising on an overdue amount will be compounded with the overdue amount
at the end of each Interest Period applicable to that overdue amount but will
remain immediately due and payable.


 


12.4                           Notification of rates of interest


 


The
Agent shall promptly notify the relevant Lenders and the relevant Borrower of
the determination of a rate of interest under this Agreement.


 


12.5                           Adjustment of Margin


 


(a)                                  Subject to this
Clause 12.5, the Margin applicable to each Utilisation under Facility A, the
Capex Facility and the Revolving Facility shall be the rate per annum specified
in the definition of


 


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Margin
set out in Clause 1.1 (Definitions)
adjusted, by reference to the ratio of Total Borrowings for the Testing Period
to EBITDA for the Testing Period as shown in the most recent Compliance
Certificate (and the financial statements with which it is required by this
Agreement to be delivered) received by the Agent, to equal the rate per annum
specified opposite the relevant range set out in the following table in which
the ratio of Total Borrowings to EBITDA falls:


 


	
  Ratio

  of Total Borrowings to

  EBITDA

  	
   

  	
  Margin
  (per cent. p.a.)

  Facility A and the Capex

  Facility

  	
   

  	
  Margin
  (per cent. p.a.)

  Revolving Facility

  	
   

  
	
  Greater than 3.25:1

  	
   

  	
  2.50

  	
  %

  	
  2.50

  	
  %

  
	
  Equal to or less than 3.25:1 but greater than 3.00:1

  	
   

  	
  2.375

  	
  %

  	
  2.375

  	
  %

  
	
  Equal to or less than 3.00:1 but greater than 2.75:1

  	
   

  	
  2.25

  	
  %

  	
  2.25

  	
  %

  
	
  Equal to or less than 2.75:1

  	
   

  	
  2.125

  	
  %

  	
  2.125

  	
  %

  



 


(b)                                 No adjustment shall
be made to the Margin under paragraph (a) above until receipt by the Agent of a
Compliance Certificate (and the financial statements with which it is required
by this Agreement to be delivered) for a Testing Period which ends on a date
falling at least 12 months after the date of this Agreement.


 


(c)                                  Any adjustment in the
Margin under paragraph (a) above shall take effect on the date of receipt by
the Agent of the relevant Compliance Certificate (and the financial statements
with which it is required by this Agreement to be delivered) in accordance with
Clause 23.3 (Compliance Certificate).


 


(d)                                 If the Margin for a
Utilisation is reduced for any period and the annual audited financial
statements of the Group and related Compliance Certificate subsequently
received by the Agent show that a higher Margin should have applied during that
period, then that reduction shall be reversed with retrospective effect and the
Margin for that Utilisation shall be the percentage per annum determined using
the table above and the revised ratio of Total Borrowings to EBITDA calculated
using the figures in that Compliance Certificate. Newco will pay (or the
Company will procure that the relevant Borrowers pay) to the Agent any amounts
necessary to put the Agent and Lenders in the position they would have been in
had the Margin always been determined for that period by reference to that
revised ratio.


 


(e)                                  While an Event of
Default is continuing, the Margin applicable to each Utilisation under Facility
A, the Capex Facility and the Revolving Facility shall revert (if it has not
already done so) to the rates specified in paragraphs (a), (d) and (e)
respectively of the definition of Margin in Clause 1.1 (Definitions) until such time when no Event
of Default is continuing


 


(f)                                    If the Agent has not
received a Compliance Certificate (or any financial statement with which that
Compliance Certificate is required by this Agreement to be delivered) in
accordance with Clause 23.3 (Compliance
Certificate), the Margin shall revert to the rate specified in
paragraph (a), (d) or (e) (as appropriate) of the definition of Margin in
Clause 1.1 (Definitions).


 


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13.                                 INTEREST PERIODS


 


13.1                           Selection of Interest Periods


 


(a)                                  A Borrower (or the
Company on behalf of a Borrower) may select an Interest Period for a Loan in
the Utilisation Request for that Loan or (if the Loan has already been
borrowed) in a Selection Notice.


 


(b)                                 Each Selection Notice
for a Term Loan is irrevocable and must be delivered to the Agent by the
Borrower (or the Company on behalf of a Borrower) to which that Term Loan was
made not later than the Specified Time.


 


(c)                                  If a Borrower (or the
Company) fails to deliver a Selection Notice to the Agent in accordance with
paragraph (b) above, the relevant Interest Period will, subject to Clause 13.2
(Changes to Interest Periods), be
1 Month.


 


(d)                                 Subject to this
Clause 13, a Borrower (or the Company) may select an Interest Period of 1, 2, 3
or 6 Months or any other period agreed between the Company and the Agent
(acting on the instructions of all the Lenders participating in the relevant
Loan). In addition, a Borrower (or the Company on its behalf) may select an
Interest Period of less than 1 Month in relation to Facility A, Facility B,
Facility C or the Capex Facility, if necessary, to ensure that there are
sufficient Facility A Loans, Facility B Loans, Facility C Loans or Capex
Facility Loans (as appropriate) which have an Interest Period ending on a
Facility A Repayment Date, Facility B Repayment Date, Facility C Repayment Date
or Capex Facility Repayment Date (as appropriate) for the Borrowers to make the
Facility A Repayment Instalment, Facility B Repayment Instalment, Facility C
Repayment Instalment or Capex Facility Repayment Instalment (as appropriate)
due on that date.


 


(e)                                  For the purposes of
determining the interest rate for an Interest Period beginning before the
Syndication Date, the Agent may shorten that Interest Period to a duration of 1
Month (or such other duration as may be agreed between the Mandated Lead
Arrangers and the Company to ensure that the Interest Period ends on a date on
which rights and obligations under this Agreement are to be novated to persons
becoming Parties as a result of Syndication).


 


(f)                                    An Interest Period
for a Loan shall not extend beyond the Termination Date applicable to its
Facility.


 


(g)                                 Each Interest Period
for a Term Loan shall start on the Utilisation Date or (if already made) on the
last day of its preceding Interest Period.


 


(h)                                 A Revolving Facility
Loan has one Interest Period only.


 


13.2                           Changes to Interest Periods


 


(a)                                  Prior to determining
the interest rate for a Facility A Loan, the Agent may shorten an Interest
Period for any Facility A Loan to ensure that there are sufficient Facility A
Loans (with an aggregate Base Currency Amount equal to or greater than the
Facility A Repayment Instalment) which have an Interest Period ending on a
Facility A Repayment Date for the Facility A Borrowers to make the Facility A
Repayment Instalment due on that Facility A Repayment Date.


 


(b)                                 Prior to determining
the interest rate for a Facility B Loan, the Agent may shorten an Interest
Period for any Facility B Loan to ensure that there are sufficient Facility B
Loans (with an


 


79





















 


aggregate
Base Currency Amount equal to or greater than the amount of the Facility B Loans
outstanding) which have an Interest Period ending on the date on which an
instalment of the Facility B Loans outstanding are due to be repaid under
paragraph (a) of Clause 10.2 (Repayment
of Facility B Loans) for the Facility B Borrowers to make the Facility
B Repayment Instalment due on that date.


 


(c)                                  Prior to determining
the interest rate for a Facility C Loan, the Agent may shorten an Interest
Period for any Facility C Loan to ensure that there are sufficient Facility C
Loans (with an aggregate Base Currency Amount equal to or greater than the
amount of the Facility C Loans outstanding) which have an Interest Period
ending on the date on which an instalment of the Facility C Loans outstanding
are due to be repaid under paragraph (a) of Clause 10.3 (Repayment of Facility C Loans) for the
Facility C Borrowers to make the Facility C Repayment Instalment due on that
date.


 


(d)                                 Prior to determining
the interest rate for a Capex Facility Loan, the Agent may shorten an Interest
Period for any Capex Facility Loan to ensure that there are sufficient Capex
Facility Loans (with an aggregate Base Currency Amount equal to or greater than
the amount of the Capex Facility Loans outstanding) which have an Interest
Period ending on the date on which an instalment of the Capex Facility Loans
outstanding are due to be repaid under paragraph (a) of Clause 10.4 (Repayment of Capex Facility Loans) for the
Capex Facility Borrowers to make the Capex Facility Repayment Instalment due on
that date.


 


(e)                                  If the Agent makes
any of the changes to an Interest Period referred to in this Clause 13.2 or in
paragraph (e) of Clause 13.1 (Selection of
Interest Periods), it shall promptly notify the Company and the
relevant Lenders.


 


13.3                           Non-Business Days


 


If
an Interest Period would otherwise end on a day which is not a Business Day,
that Interest Period will instead end on the next Business Day in that calendar
month (if there is one) or the preceding Business Day (if there is not).


 


13.4                           Consolidation and division of Term Loans and Capex Facility Loans


 


(a)                                  Subject to paragraph
(b) below, if 2 or more Interest Periods:


 


(i)                                     relate to Term Loans
or to Capex Facility Loans;


 


(ii)                                  end on the
same date; and


 


(iii)                               are made
to the same Borrower,


 


those
Term Loans or Capex Facility Loans (as applicable) will, unless that Borrower
(or the Company on its behalf) specifies to the contrary in the Selection
Notice for the next Interest Period, be consolidated into, and treated as, a
single Facility A Loan, Facility B Loan, Facility C Loan or Capex Facility
Loan, as applicable, on the last day of the Interest Period.


 


(b)                                 Subject to Clause 4.4
(Maximum number of Utilisations)
and Clause 5.3 (Currency and amount of a
Loan), if a Borrower (or the Company on its behalf) requests in a
Selection Notice that a Facility A Loan, a Facility B Loan, a Facility C Loan
or a Capex Facility Loan be divided into 2 or more Facility A Loans, Facility B
Loans, Facility C Loans or Capex Facility Loans, as applicable, that Loan will,
on the last day of its Interest Period, be so divided with Base Currency
Amounts


 


80





















 


specified
in that Selection Notice, being an aggregate Base Currency Amount equal to the
Base Currency Amount of the Loan immediately before its division.


 


14.                                 CHANGES TO THE CALCULATION OF
INTEREST


 


14.1                           Absence of quotations


 


Subject
to Clause 14.2 (Market disruption),
if LIBOR or, if applicable, EURIBOR is to be determined by reference to the
Reference Banks but if a Reference Bank does not supply a quotation by the
Specified Time on the Quotation Day, the applicable LIBOR or EURIBOR shall be
determined on the basis of the quotations of the remaining Reference Banks.


 


14.2                           Market disruption


 


(a)                                  If a Market
Disruption Event occurs in relation to a Loan for any Interest Period, then the
rate of interest on each Lender’s share of that Loan for the Interest Period
shall be the rate per annum which is the sum of:


 


(i)                                     the Margin;


 


(ii)                                  the rate
notified to the Agent by that Lender as soon as practicable and in any event
before interest is due to be paid in respect of that Interest Period, to be
that which expresses as a percentage rate per annum the cost to that Lender of
funding its participation in that Loan from whatever source it may reasonably
select; and


 


(iii)                               the
Mandatory Cost, if any, applicable to that Lender’s participation in the Loan.


 


(b)                                 In this Agreement “Market Disruption Event” means:


 


(i)                                     at or about noon on
the Quotation Day for the relevant Interest Period the Screen Rate is not
available and none or only one of the Reference Banks supplies a rate to the
Agent to determine LIBOR or, if applicable, EURIBOR for the relevant currency
and Interest Period; or


 


(ii)                                  before
close of business in London on the Quotation Day for the relevant Interest
Period, the Agent receives notification from a Lender or Lenders (whose
participations in a Loan exceed 50 per cent. of that Loan) that the cost to it
of obtaining matching deposits in the Relevant lnterbank Market would be in
excess of LIBOR or, if applicable, EURIBOR.


 


14.3                           Alternative basis of interest or funding


 


(a)                                  If a Market
Disruption Event occurs and the Agent or the Company so requires, the Agent and
the Company shall enter into negotiations (for a period of not more than 30
days) with a view to agreeing a substitute basis for determining the rate of
interest.


 


(b)                                 Any alternative basis
agreed pursuant to paragraph (a) above shall, with the prior consent of all the
Lenders and the Company, be binding on all Parties.


 


14.4                           Break Costs


 


(a)                                  Each Borrower shall,
within 3 Business Days of demand by a Senior Finance Party, pay to that Senior
Finance Party its Break Costs attributable to all or any part of a Loan or
Unpaid Sum being paid by that Borrower on a day other than the last day of an
Interest Period for that Loan or Unpaid Sum.


 


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(b)                                 Each Lender shall, as
soon as reasonably practicable after a demand by the Agent, provide a
certificate confirming the amount of its Break Costs for any Interest Period in
which they accrue.


 


15.                                 FEES


 


15.1                           Commitment fee


 


Subject
to Clause 15.6 (No fees if Completion Date
does not occur):


 


(a)                                  Newco shall pay to
the Agent (for the account of each Lender) a fee in dollars computed at the
rate of:


 


(i)                                     0.50 per cent. per
annum on that Lender’s Facility A Commitment from the date of this Agreement
until the end of the Availability Period relating to Facility A or, if earlier,
the date on which Facility A is cancelled in full;


 


(ii)                                  0.50 per
cent. per annum on that Lender’s Facility B Commitment from the date of this
Agreement until the end of the Availability Period relating to Facility B, or
if earlier, the date on which Facility B is cancelled in full;


 


(iii)                               0.50 per
cent. per annum on that Lender’s Facility C Commitment from the date of this
Agreement until the end of the Availability Period relating to Facility C or,
if earlier, the date on which Facility C is cancelled in full;


 


(iv)                              0.50 per
cent. per annum on that Lender’s Available Commitment under the Capex Facility
from the date of this Agreement until (and including) the Completion Date or,
if earlier, the date on which the Capex Facility is cancelled in full:


 


(v)                                 1.00 per cent. per
annum on that Lender’s Available Commitment under the Capex Facility from (but
excluding) the Completion Date until (and including) the earlier of:


 


(A)                              the date on which the
Capex Facility is fully drawn; and


 


(B)                                the end of the
Availability Period applicable be the Capex Facility or, if earlier, the date
on which the Capex Facility is cancelled in full;


 


(vi)                              0.50 per
cent. per annum on that Lender’s Available Commitment under the Revolving
Facility from the date of this Agreement until (and including) the Completion
Date or, if earlier the date on which the Revolving Facility is cancelled in
full; and


 


(vii)                           0.75 per
cent. per annum on that Lender’s Available Commitment under the Revolving
Facility from (but excluding) the Completion Date until (and including) the end
of the Availability Period applicable to the Revolving Facility or, if earlier,
the date on which the Revolving Facility is cancelled in full.


 


(b)                                 The accrued
commitment fee in respect of each Term Facility is payable as follows:


 


(i)                                     on the first
Utilisation Date; and


 


(ii)                                  on the
last day of the relevant Availability Period; and


 


(iii)                               if the
remaining Available Facility is fully drawn, on the date when this occurs; or


 


(iv)                              if
cancelled in full, on the cancelled amount of the relevant Lender’s Commitment
on the date on which the cancellation becomes effective.


 


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(c)                                  The accrued
commitment fee in respect of the Revolving Facility and the Capex Facility is
payable in each case as follows:


 


(i)                                     on the first
Utilisation Date for that Facility; and


 


(ii)                                  thereafter,
quarterly in arrear on the last day of each successive period of 3 Months which
ends during the relevant Availability Period; and


 


(iii)                               on the
last day of the relevant Availability Period; or


 


(iv)                              if the
remaining Available Facility under that Facility is fully drawn, on the date
when this occurs; and


 


(v)                                 if cancelled in full,
on the cancelled amount of the relevant Lender’s Commitment on the date on
which the cancellation becomes effective.


 


15.2                           Arrangement fee


 


Subject
to Clause 15.6 (No fees if Completion Date
does not occur), Newco shall pay to the Mandated Lead Arrangers an
arrangement fee in the amount and at the times agreed in a Fee Letter.


 


15.3                           Agency fee


 


Subject
to Clause 15.6 (No fees if Completion Date
does not occur), Newco shall pay to the Agent (for its own account)
an agency fee (including a security trustee fee) in the amount and at the times
agreed in a Fee Letter.


 


15.4                           Fees payable in respect of Letters of Credit and Bank Guarantees


 


Subject
to Clause 15.6 (No fees if Completion Date
does not occur):


 


(a)                                  Each Revolving
Facility Borrower shall pay to the Agent (for the account of the Issuing Bank)
a fronting fee in the currency in which the Letter of Credit or Bank Guarantee
is denominated computed at the rate of 0.125 per cent. per annum on the Outstanding
Liability Amount from time to time of each Letter of Credit or Bank Guarantee
requested by it for the period from the issue of that Letter of Credit or Bank
Guarantee until its Expiry Date (after deducting from such amount, the amount
of the Issuing Bank’s participation (if any) in such Letter of Credit or Bank
Guarantee).


 


(b)                                 The fronting fee on a
Letter of Credit or Bank Guarantee shall be payable in arrears on the last day
of each successive period of 3 months (or such shorter period as shall end on
the Expiry Date for that Letter of Credit or Bank Guarantee) starting on the
date of issue of that Letter of Credit or Bank Guarantee.


 


(c)                                  Each Revolving
Facility Borrower shall pay to the Agent for application to each Revolving
Facility Lender according to its Proportion of any Letter of Credit or Bank
Guarantee a commission equal to the Margin applicable from time to time to
Revolving Facility Utilisations applied on the Outstanding Liability Amount
from time to time of each Letter of Credit or Bank Guarantee issued at its
request in respect of the period between the date of issue of the Letter of
Credit or Bank Guarantee and the earlier of its Expiry Date and the date when
the Outstanding Liability Amount under it has been reduced to nil.


 


(d)                                 Such commission shall
be calculated on the basis of a year of 360 days and shall be payable on the
last day of each successive period of 3 months (or such shorter period as shall
end on the


 


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Expiry
Date for that Letter of Credit or Bank Guarantee) starting on the date of issue
of that Letter of Credit or Bank Guarantee. Accrued commission will also be
payable to the Agent on the cancelled amount of any Lender’s Revolving Facility
Commitment at the time the cancellation is effective if that Commitment is
cancelled in full and that Revolving Facility Lender’s Proportion of the Letter
of Credit or Bank Guarantee is prepaid or repaid in full.


 


15.5                           Ancillary Facility fees


 


Subject
to Clause 15.6 (No fees if Completion Date
does not occur), Newco or the relevant Borrower shall pay to the
relevant Ancillary Lender the Ancillary Facility fee(s) in the amount(s) and at
the times agreed in the relevant Ancillary Facility Document.


 


15.6                           No fees if Completion Date does not occur


 


Notwithstanding
any other provision of this Clause 15, no fees under this Clause 15 shall
be payable if the Completion Date does not occur.


 


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SECTION 6


 


ADDITIONAL PAYMENT OBLIGATIONS


 


16.           TAX GROSS-UP AND INDEMNITIES


 


16.1       Definitions


 


(a)           In this Agreement:


 


“Protected Party” means a Senior Finance
Party which is or will be subject to any liability, or required to make any
payment, for or on account of Tax in relation to a sum received or receivable
(or any sum deemed for the purposes of Tax to be received or receivable) under
a Senior Finance Document.


 


“Qualifying Lender” means in relation to a
Tax Deduction in respect of Tax imposed by the United Kingdom, a Lender which
is beneficially entitled to interest payable to that Lender in respect of an
advance under a Senior Finance Document and is:


 


(i)                                     a Lender:


 


(A)                              which is a bank (as defined for the purpose of section 349
of the Taxes Act) making an advance under a Senior Finance Document; or


 


(B)                                in respect of an advance made under a Senior Finance
Document by a person that was a bank (as defined for the purpose of section 349
of the Taxes Act) at the time that that advance was made,


 


and
which is within the charge to United Kingdom corporation tax as respects any
payments of interest made in respect of that advance; or


 


(ii)                                  a Lender which is:


 


(A)                              a company resident in the United Kingdom for United
Kingdom tax purposes;


 


(B)                                a partnership each member of which is a company
resident in the United Kingdom for United Kingdom tax purposes; or


 


(C)                                a company
not so resident in the United Kingdom which carries on a trade in the United
Kingdom through a branch or agency and which brings into account interest
payable in respect of that advance in computing its chargeable profits (within
the meaning given by section 11(2) of the Taxes Act); or


 


(iii)                               a Treaty Lender with respect to the United Kingdom.


 


“Tax Confirmation” means a confirmation by a
Lender that the person beneficially entitled to interest payable to that Lender
in respect of an advance under a Senior Finance Document is either:


 


(i)                                     a company
resident in the United Kingdom, or a partnership each member of which is a
company resident in the United Kingdom, for United Kingdom tax purposes; or


 


(ii)                                  a company
not so resident in the United Kingdom which carries on a trade in the United
Kingdom through a branch or agency and that interest payable in respect of that


 


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advance falls to be brought
into account in computing the chargeable profits of that company for the
purposes of section 11 (2) of the Taxes Act.


 


“Tax Credit” means a credit against, relief
or remission for, or repayment of any Tax.


 


“Tax Deduction” means a deduction or
withholding for or on account of Tax from a payment under a Senior Finance
Document.


 


“Tax Payment” means either the increase in a
payment made by an Obligor to a Senior Finance Party under Clause 16.2 (Tax gross-up) or a payment under Clause
16.3 (Tax and Expenses Indemnity).


 


“Treaty  Lender”
means a Lender which in relation to a Tax Deduction in respect of Tax imposed
by the United Kingdom:


 


(i)                                     is treated
as a resident of a jurisdiction (having a double taxation agreement (a “Treaty”) with the United Kingdom which
makes provision for full exemption from tax imposed by the United Kingdom on
interest) for the purposes of the Treaty; and


 


(ii)                                  does not carry on a business in the United Kingdom through
a permanent establishment with which that Lender’s participation in the Loans
is effectively connected.


 


“UK Non-Bank Lender” means:


 


(i)                                     where a
Lender becomes a Party on the day on which this Agreement is entered into, a
Lender listed in Part Ill of Schedule 1 (The Original Parties); and


 


(ii)                                  where a Lender becomes a Party to this Agreement after the
day on which this Agreement is entered into, a Lender which gives a Tax
Confirmation in the Transfer Certificate which it executes on becoming a Party
to this Agreement.


 


(b)                                 Unless a
contrary indication appears, in this Clause 16 a reference to “determines” or “determined” means a determination made in the absolute
discretion of the person making the determination.


 


16.2         Tax
gross-up


 


(a)                                  Each
Obligor shall make all payments to be made by it without any Tax Deduction,
unless a Tax Deduction is required by law.


 


(b)                                 The
Company shall promptly upon becoming aware that an Obligor must make a Tax
Deduction (or that there is any change in the rate or the basis of a Tax
Deduction) notify the Agent accordingly. Similarly, a Lender shall notify the
Agent on becoming so aware in respect of a payment payable to that Lender. If
the Agent receives such notification from a Lender it shall notify the Company
and that Obligor.


 


(c)                                  If a Tax
Deduction is required by law to be made by an Obligor, the amount of the
payment due from that Obligor shall be increased to an amount which (after
making any Tax Deduction) leaves an amount equal to the payment which would
have been due if no Tax Deduction had been required.


 


(d)                                 An Obligor
is not required to make an increased payment to a Lender under paragraph (c)
above for a Tax Deduction in respect of Tax imposed by the United Kingdom from
a payment of interest on a Loan if on the date on which the payment falls due:


 


86





















 


(i)                                     the
payment could have been made to the relevant Lender without a Tax Deduction if
it was a Qualifying Lender, but on that date that Lender is not or has ceased
to be a Qualifying Lender other than as a result of any change after the date
it became a Lender under this Agreement in (or in the interpretation,
administration, or application of) any law or Treaty, or any published practice
or concession of any relevant taxing authority; or


 


(ii)


 


(A)                              the
relevant Lender is a UK Non-Bank Lender, or would have been a UK Non- Bank
Lender were it not for any change after the date it became a Lender under this
Agreement in (or in the interpretation, administration, or application of) any
law or Treaty, or any published practice or concession of any relevant taxing
authority; and


 


(B)                                the Board
of the Inland Revenue has given (and not revoked) a direction under section
349C of the Taxes Act (as that provision has effect on the date on which the relevant
Lender became a party to this Agreement) which relates to that payment and that
Obligor has notified that UK Non-Bank Lender of the precise terms of that
notice; or


 


(iii)                               the relevant Lender is a Treaty Lender and the Obligor
making the payment is able to demonstrate that the payment could have been made
to the Lender without the Tax Deduction had that Lender complied with its
obligations under paragraph (g) below.


 


(e)                                  If an
Obligor is required to make a Tax Deduction, that Obligor shall make that Tax
Deduction and any payment required in connection with that Tax Deduction within
the time allowed and in the minimum amount required by law.


 


(f)                                    Within 30
days of making either a Tax Deduction or any payment required in connection
with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to
the Agent for the Senior Finance Party entitled to the payment an original
receipt (or certified copy thereof) evidencing payment or other evidence
reasonably satisfactory to that Senior Finance Party that the Tax Deduction has
been made or (as applicable) any appropriate payment paid to the relevant
taxing authority.


 


(g)                                 A Treaty
Lender and each Obligor which makes a payment to which that Treaty Lender is
entitled shall co-operate in completing any procedural formalities necessary
for that Obligor to obtain authorisation to make that payment without a Tax
Deduction.


 


(h)                                 A UK
Non-Bank Lender which becomes a Party on the day on which this Agreement is
entered into gives a Tax Confirmation to the Company by entering into this
Agreement.


 


(i)                                     A UK
Non-Bank Lender shall promptly notify the Company and the Agent if there is any
change in the position from that set out in the Tax Confirmation.


 


16.3         Tax
and Expenses Indemnity


 


(a)                                  Newco
shall (within 3 Business Days of demand by the Agent) pay to a Protected Party
an amount equal to the loss, liability or cost which that Protected Party
determines will be or has been (directly or indirectly) suffered for or on
account of Tax by that Protected Party in respect of a Senior Finance Document.


 


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(b)                                 Paragraph
(a) above shall not apply:


 


(i)                                     with respect to any Tax assessed on a Senior Finance
Party:


 


(A)                              under the law of the jurisdiction in which that Senior Finance
Party is incorporated or, if different, the jurisdiction (or jurisdictions) in
which that Senior Finance Party is treated as resident for tax purposes; or


 


(B)                                under the law of the jurisdiction in which that Senior
Finance Party’s Facility Office is located in respect of amounts received or
receivable in that jurisdiction,


 


if that Tax is imposed on or calculated by reference to
the net income received or receivable (but not any sum deemed to be received or
receivable) by that Senior Finance Party; or


 


(ii)                                  to the extent a loss, liability or cost:


 


(A)                              is compensated for by an increased payment under Clause
16.2 (Tax gross-up); or


 


(B)                                would have been compensated for by an increased payment
under Clause 16.2 (Tax gross-up)
but was not so compensated solely because one of the exclusions in paragraph
(d) of Clause 16.2 (Tax gross-up)
applied.


 


(c)                                  A
Protected Party making, or intending to make, a claim under paragraph (a) above
shall promptly notify the Agent of the event which will give, or has given, rise
to the claim, following which the Agent shall notify the Company.


 


(d)                                 A
Protected Party shall, on receiving a payment from an Obligor under this Clause
16.3, notify the Agent.


 


16.4         Tax
Credit


 


If
an Obligor makes a Tax Payment and the relevant Senior Finance Party determines
that:


 


(a)                                  a Tax Credit is attributable either to an increased
payment of which that Tax Payment forms part, or to that Tax Payment; and


 


(b)                                 that Senior Finance Party has obtained, utilised and
retained that Tax Credit on an affiliated group basis,


 


the
Senior Finance Party shall pay an amount to the Obligor which that Senior
Finance Party determines will leave it (after that payment) in the same
after-Tax position as it would have been in had the Tax Payment not been
required to be made by the Obligor.


 


16.5         Stamp
taxes


 


Newco
shall pay and, within 3 Business Days of demand, indemnify each Senior Finance
Party against any cost, loss or liability that such Senior Finance Party incurs
in relation to all stamp duty, registration and other similar Taxes payable in
respect of any Senior Finance Document.


 


16.6         Value
added tax


 


(a)                                  All
consideration expressed to be payable under a Senior Finance Document by any
Party to a Senior Finance Party shall be deemed to be exclusive of any VAT. If
VAT is chargeable on any supply made by any Senior Finance Party to any Party
in connection with a Senior Finance


 


88





















 


Document, that Party shall pay to the Senior
Finance Party (in addition to and at the same time as paying the consideration)
an amount equal to the amount of the VAT.


 


(b)                                 Where a
Senior Finance Document requires any Party to reimburse a Senior Finance Party
for any costs or expenses, that Party shall also at the same time pay and
indemnify the Senior Finance Party against all VAT incurred by the Senior
Finance Party in respect of the costs or expenses.


 


17.           INCREASED COSTS


 


17.1         Increased
Costs


 


(a)                                  Subject to
Clause 17.3 (Exceptions) Newco
shall, within 3 Business Days of a demand by the Agent, pay for the account of
a Senior Finance Party the amount of any Increased Costs incurred by that
Senior Finance Party or any of its Affiliates as a result of:


 


(i)                                     the introduction of or any change in (or in the
interpretation, administration or application of) any law or regulation; or


 


(ii)                                  compliance with any law or regulation made after the date of
this Agreement.


 


(b)                                 In this
Agreement “Increased Costs” means:


 


(i)                                     a reduction in the rate of return from the Facility or
on a Senior Finance Party’s (or its Affiliate’s) overall capital;


 


(ii)                                  an additional or increased cost; or


 


(iii)                               a reduction of any amount due and payable under any
Senior Finance Document,


 


which is incurred or suffered by a Senior Finance
Party or any of its Affiliates to the extent that it is attributable to that
Senior Finance Party having entered into its Commitment or funding or
performing its obligations under any Senior Finance Document.


 


17.2         Increased
cost claims


 


(a)                                  A Senior
Finance Party intending to make a claim pursuant to Clause 17.1 (Increased Costs) shall notify the Agent of
the event giving rise to the claim, following which the Agent shall promptly
notify the Company.


 


(b)                                 Each
Senior Finance Party shall, as soon as practicable after a demand by the Agent,
provide a certificate confirming the amount of its Increased Costs.


 


17.3         Exceptions


 


(a)                                  Clause
17.1 (Increased Costs) does not
apply to the extent any Increased Cost is:


 


(i)                                     attributable to a Tax Deduction required by law to be made
by an Obligor;


 


(ii)                                  compensated
for by Clause 16.3 (Tax and Expenses
Indemnity) (or would have been compensated for under Clause 16.3 (Tax and Expenses Indemnity) but was not so
compensated solely because any of the exclusions in paragraph (b) of Clause
16.3 (Tax and Expenses Indemnity)
applied);


 


(iii)                               compensated for by the payment of the Mandatory Cost; or


 


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(iv)                              attributable to the failure by the relevant Senior Finance
Party or its Affiliates to comply with any law or regulation.


 


(b)                                 In this
Clause 17.3, a reference to a “Tax Deduction” has the same meaning given to the
term in Clause 16.1 (Definitions).


 


18.           OTHER INDEMNITIES


 


18.1       Currency indemnity


 


(a)                                  If any sum
due from an Obligor under the Senior Finance Documents (a “Sum”), or any order, judgment or award
given or made in relation to a Sum, has to be converted from the currency (the
“First Currency”) in which that
Sum is payable into another currency (the “Second
Currency”) for the purpose of:


 


(i)                                     making or filing a claim or proof against that Obligor; or


 


(ii)                                  obtaining or enforcing an order, judgment or award in relation
to any litigation or arbitration proceedings,


 


that
Obligor shall as an independent obligation, within 3 Business Days of demand,
indemnify each Senior Finance Party to whom that Sum is due against any cost,
loss or liability arising out of or as a result of the conversion including any
discrepancy between (A) the rate of exchange used to convert that Sum from the
First Currency into the Second Currency and (B) the rate or rates of exchange
available to that person at the time of its receipt of that Sum.


 


(b)                                 Each
Obligor waives any right it may have in any jurisdiction to pay any amount
under the Senior Finance Documents in a currency or currency unit other than
that in which it is expressed to be payable.


 


18.2         Other
indemnities


 


Newco
shall (or the Company shall procure that an Obligor will), within 3 Business
Days of demand, indemnify each Senior Finance Party against any cost, loss or
liability incurred by that Senior Finance Party as a result of:


 


(a)                                  the occurrence of any Event of Default;


 


(b)                                 a failure
by an Obligor to pay any amount due under a Senior Finance Document on its due
date, including, without limitation, any cost, loss or liability arising as a
result of Clause 31 (Sharing among the
Senior Finance Parties);


 


(c)                                  funding,
or making arrangements to fund, its participation in a Utilisation requested by
a Borrower in a Utilisation Request but not made by reason of the operation of
any one or more of the provisions of this Agreement (other than by reason of
default or negligence by that Senior Finance Party alone); or


 


(d)                                 a Utilisation (or part of a Utilisation) not being
prepaid in accordance with a notice of prepayment given by a Borrower or the
Company or as required by this Agreement.


 


18.3         Indemnity
to the Agent


 


Newco
shall (or the Company shall procure that an Obligor will) within 3 Business
Days of demand promptly indemnify the Agent against any cost, loss or liability
incurred by the Agent (acting reasonably) as a result of:


 


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(a)                                  investigating
any event which it reasonably believes is a Default except if after doing so it
is apparent that there is and was no Default; or


 


(b)                                 acting or relying on any notice, request or instruction
which it reasonably believes to be genuine, correct and appropriately
authorised to the extent such cost, loss or liability was because such notice,
request or instruction was not so genuine, correct or appropriate.


 


19.           MITIGATION BY THE LENDERS


 


19.1         Mitigation


 


(a)                                  Each
Senior Finance Party shall, in consultation with the Company, take all
reasonable steps to mitigate any circumstances which arise and which would
result in any amount becoming payable under or pursuant to, or cancelled
pursuant to, any of Clause 11.1 (Illegality),
Clause 16 (Tax gross-up  and indemnities) or Clause 17 (Increased Costs) including (but not
limited to) transferring its rights and obligations under the Senior Finance
Documents to another Affiliate or Facility Office.


 


(b)                                 Paragraph
(a) above does not in any way limit the obligations of any Obligor under the
Senior Finance Documents.


 


19.2         Limitation
of liability


 


(a)                                  Newco
shall indemnify each Senior Finance Party for all costs and expenses reasonably
incurred by that Senior Finance Party as a result of steps taken by it under
Clause 19.1 (Mitigation).


 


(b)                                 A Senior
Finance Party is not obliged to take any steps under Clause 19.1 (Mitigation) if, in the opinion of that
Senior Finance Party (acting reasonably), to do so might be prejudicial to it.


 


20.           COSTS AND EXPENSES


 


20.1         Transaction
expenses


 


Newco
shall promptly on demand pay the Agent, the Security Trustee and the Mandated
Lead Arrangers the amount of all reasonable costs and expenses (including legal
fees) incurred by any of them in connection with the negotiation, preparation,
arrangement, printing, execution and Syndication of:


 


(a)                                  this Agreement and any other documents referred to in this
Agreement; and


 


(b)                                 any other Senior Finance Documents executed after the
date of this Agreement,


 


provided that Newco shall not be required to meet any
such costs and expenses to the extent they exceed amounts agreed in respect
thereof between Apax, Permira and the Mandated Lead Arrangers prior to the date
of this Agreement.


 


20.2         Amendment
costs


 


If
(a) an Obligor requests an amendment, waiver or consent or (b) an amendment is
required pursuant to Clause 32.9 (Change of
currency), Newco shall, within 3 Business Days of demand, reimburse
the Agent and the Security Trustee for the amount of all reasonable costs and
expenses (including legal fees) incurred by the Agent or the Security Trustee
in responding to,


 


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evaluating, negotiating or complying with that request or
in connection with that required amendment.


 


20.3         Enforcement
costs


 


Newco
shall, within 3 Business Days of demand, pay to each Senior Finance Party the
amount of all costs and expenses (including legal fees) incurred by that Senior
Finance Party in connection with the enforcement of, or the preservation of any
rights under, any Senior Finance Document.


 


20.4         Security
Trustee expenses


 


Newco
shall promptly on demand pay the Security Trustee the amount of all reasonable
costs and expenses (including legal fees) incurred by it in connection with the
administration or release of any Security created pursuant to any Security
Document.


 


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SECTION 7


 


GUARANTEE AND SECURITY


 


21.           GUARANTEE AND INDEMNITY


 


21.1         Guarantee
and indemnity


 


Each
Guarantor irrevocably and unconditionally jointly and severally:


 


(a)                                  guarantees to each Senior Finance Party and Hedging Bank
punctual performance by each other Obligor of all that Obligor’s obligations under
the Senior Finance Documents and the Hedging Documents;


 


(b)                                 undertakes
with each Senior Finance Party and Hedging Bank that whenever an Obligor does
not pay any amount when due under or in connection with any Senior Finance
Document or Hedging Document, that Guarantor shall immediately on demand pay
that amount as if it was the principal obligor; and


 


(c)                                  indemnifies each Senior Finance Party and Hedging Bank
immediately on demand against any cost, loss or liability suffered by that
Senior Finance Party or Hedging Bank if any obligation guaranteed by it is or
becomes unenforceable, invalid or illegal. The amount of the cost, loss or
liability shall be equal to the amount which that Senior Finance Party or
Hedging Bank would otherwise have been entitled to recover.


 


21.2         Continuing
guarantee


 


This
guarantee is a continuing guarantee and will extend to the ultimate balance of
sums payable by any Obligor under the Senior Finance Documents and the Hedging
Documents, regardless of any intermediate payment or discharge in whole or in
part.


 


21.3         Reinstatement


 


If
any payment by an Obligor or any discharge given by a Senior Finance Party or
Hedging Bank (whether in respect of the obligations of any Obligor or any
security for those obligations or otherwise) is avoided or reduced as a result
of insolvency or any similar event:


 


(a)                                  the liability of each Obligor shall continue as if the
payment, discharge, avoidance or reduction had not occurred; and


 


(b)                                 each Senior Finance Party or Hedging Bank (as applicable)
shall be entitled to recover the value or amount of that security or payment
from each Obligor, as if the payment, discharge, avoidance or reduction had not
occurred.


 


21.4         Waiver
of defences


 


The
obligations of each Guarantor under this Clause 21 will not be affected by an
act, omission, matter or thing which, but for this Clause 21, would reduce,
release or prejudice any of its obligations under this Clause 21 (without
limitation and whether or not known to it or any Senior Finance Party or
Hedging Bank) including:


 


(a)                                  any time, waiver or consent granted to, or composition
with, any Obligor or other person;


 


(b)                                 the release of any other Obligor or any other person
under the terms of any composition or arrangement with any creditor of any
member of the Group or any other person;


 


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(c)                                  the
taking, variation, compromise, exchange, renewal or release of, or refusal or
neglect to perfect, take up or enforce, any rights against, or security over
assets of, any Obligor or other person or any non-presentation or
non-observance of any formality or other requirement in respect of any
instrument or any failure to realise the full value of any security;


 


(d)                                 any incapacity or lack of power, authority or legal
personality of or dissolution or change in the members or status of an Obligor
or any other person;


 


(e)                                  any amendment (however fundamental) or replacement of a
Senior Finance Document, Hedging Document or any other document or security;


 


(f)                                    any
unenforceability, illegality or invalidity of any obligation of any person
under any Senior Finance Document, Hedging Document or any other document or
security; or


 


(g)                                 any insolvency or similar proceedings.


 


21.5         Immediate
recourse


 


Each
Guarantor waives any right it may have of first requiring any Senior Finance
Party or Hedging Bank (or any trustee or agent on its behalf) to proceed
against or enforce any other rights or security or claim payment from any
person before claiming from that Guarantor under this Clause 21. This waiver
applies irrespective of any law or any provision of a Senior Finance Document
or Hedging Document to the contrary.


 


21.6         Appropriations


 


Until
all amounts which may be or become payable by the Obligors under or in
connection with the Senior Finance Documents and Hedging Documents have been
irrevocably paid in full, each Senior Finance Party or Hedging Bank (or any
trustee or agent on its behalf) may:


 


(a)                                  refrain
from applying or enforcing any other moneys, security, Senior Finance Documents
and/or Hedging Documents or rights held or received by that Senior Finance
Party or Hedging Bank (or any trustee or agent on its behalf) in respect of
those amounts, or apply and enforce the same in such manner and order as it
sees fit (whether against those amounts or otherwise) and no Guarantor shall be
entitled to the benefit of the same; and


 


(b)                                 hold in an interest-bearing suspense account any moneys
received from any Guarantor or on account of any Guarantor’s liability under
this Clause 21.


 


21.7         Deferral
of Guarantors’ rights


 


Until
all amounts which may be or become payable by the Obligors under or in
connection with the Senior Finance Documents and Hedging Documents have been
irrevocably paid in full and unless the Agent (or, as the case may be, the
Security Trustee) otherwise directs, no Guarantor will exercise any rights
which it may have by reason of performance by it of its obligations under the
Senior Finance Documents or Hedging Documents:


 


(a)                                  to be indemnified by an Obligor;


 


(b)                                 to claim any contribution from any other guarantor of
any Obligor’s obligations under the Senior Finance Documents or Hedging
Documents; and/or


 


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(c)                                  to take
the benefit (in whole or in part and whether by way of subrogation or
otherwise) of any rights of the Senior Finance Party under the Senior Finance
Documents or of the Hedging Bank under the Hedging Documents or of any of them
under any other guarantee or security taken pursuant to, or in connection with,
the Senior Finance Documents or Hedging Documents by any Senior Finance Party
or Hedging Bank.


 


21.8         Additional
security


 


This
guarantee is in addition to and is not in any way prejudiced by any other
guarantee or security now or subsequently held by any Senior Finance Party or
Hedging Bank.


 


21.9         Guarantee
limitations


 


(a)                                  The
obligations of each Guarantor which is not incorporated in England and Wales
shall be subject to the guarantee limitations (if any) specified in the
Accession Letter in relation to that Additional Guarantor.


 


(b)                                 The
obligations of each Guarantor incorporated in England and Wales under the
guarantee and indemnity contained in Clause 21.1 (Guarantee and indemnity) will not extend to cover any
guarantee or indemnity of indebtedness which, if those obligations did so
extend, would cause that Guarantor to be in breach of any of the provisions of
section 151 of the Companies Act 1985 (or, in the case of any Guarantor which
is not incorporated in England and Wales, in breach of any similar or analogous
enactment or provisions applicable in any other jurisdiction).


 


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SECTION 8


 


REPRESENTATIONS,
UNDERTAKINGS AND EVENTS OF DEFAULT


 


22.           REPRESENTATIONS


 


The
Company and each Obligor makes the representations and warranties set out in
this Clause 22 to each Senior Finance Party on the dates set out in Clause
22.25 (Times on which representations made)
(in the case of any Obligor, only in relation to itself and, to the extent
expressed to be applicable to them, its Material Subsidiaries). In relation to
each representation and warranty made on the Completion Date, each Acquired
Group Member shall be deemed to be part of the Group.


 


22.1         Status


 


(a)                                  It is a
limited liability company or corporation, duly incorporated and validly
existing under the law of its jurisdiction of incorporation.


 


(b)                                 It, and
each of its Material Subsidiaries, has the power to own its assets and carry on
its business substantially as it is presently being conducted.


 


22.2         Binding
obligations


 


The
obligations expressed to be assumed by it in each Transaction Document to which
it is or will be a party are legal, valid, binding and enforceable, subject to:


 


(a)                                  any applicable Reservations; and


 


(b)                                 in the case of any Security Document and any High Yield
Notes Security Document, also the applicable Perfection Requirements.


 


22.3         Non-conflict
with other obligations


 


The
entry into and performance by it of, and the transactions contemplated by, the
Transaction Documents do not and will not:


 


(a)                                  conflict with:


 


(i)                                     any law or any official or judicial regulation applicable
to it or any of its Subsidiaries;


 


(ii)                                  its, or any of its Subsidiaries’, constitutional
documents; or


 


(iii)                               any agreement or instrument to which it or any Subsidiary
of it is a party or which is binding upon them or on any of its or any of its
Subsidiaries’ assets,


 


in
each case to the extent that such a conflict would reasonably be expected to
have a Material Adverse Effect or could reasonably be expected to result in a
material liability to any Senior Finance Party; or


 


(b)                                 (except as provided in any Security Document or to the extent
a Permitted Security) result in the existence of, or oblige it or any of its
Subsidiaries to create, any Security over any of its or any of its Subsidiaries’
assets.


 


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22.4         Power
and authority


 


It
has the power to enter into, perform and deliver, and has taken all necessary
action to authorise its entry into, performance and delivery of, the Transaction
Documents to which it is or will be a party and the transactions contemplated
by those Transaction Documents.


 


22.5         Validity
and admissibility in evidence


 


All
material Authorisations required:


 


(a)                                  to enable it to enter into, exercise its rights and comply
with its obligations in the Transaction Documents to which it is a party and
the transactions contemplated by the Transaction Documents;


 


(b)                                 to make the Finance Documents to which it is a party
admissible in evidence in the Relevant Jurisdictions, subject to any applicable
Reservations;


 


(c)                                  to enable
it to create the Security purported to be created by it pursuant to any
Security Document, subject to any applicable Reservations; and


 


(d)                                 to enable it to carry on its business where failure to
have such Authorisation would reasonably be expected to have a Material Adverse
Effect,


 


have
(in the case of paragraph (d) above, to the knowledge of the Company after due
and careful enquiry) been obtained or effected and are in full force and
effect, save for complying with any applicable Perfection Requirements or (in
the case of any Authorisation in connection with the Acquisition and other
transactions contemplated by the Transaction Documents) such Authorisations
will have been obtained or effected and will be in full force and effect before
the first Utilisation Request.


 


22.6         No
default


 


(a)                                  No Event
of Default has occurred and is continuing or would reasonably be expected to
result from the making of any Utilisation.


 


(b)                                 To the
knowledge of the Company after due and careful enquiry, no other event or
circumstance is outstanding which constitutes (or which would, with the lapse
of time, the giving of notice, the making of any determination under the
relevant document or any combination of the foregoing, constitute (other than
the mere occurrence of such event)) a default under any other agreement or
instrument which is binding on it or any of its Subsidiaries or to which its
(or any of its Subsidiaries’) assets are subject which would be reasonably
expected to have a Material Adverse Effect.


 


22.7         Information
Package


 


(a)                                  To the
knowledge of the Company after due and careful enquiry, all material factual
information in the Information Package (other than the Commercial Report) was
true and accurate in all material respects as at the date it was provided or as
at the date (if any) at which it is stated.


 


(b)                                 Any
financial projections or forecasts in:


 


(i)                                     the Financing Case and the Accountants’ Report; and


 


(ii)                                  all other items contained in the Information Package
(other than the Commercial Report),


 


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have
(in the case of paragraph (ii) above, to the knowledge of the Company after due
and careful enquiry) been prepared in all material respects on the basis of recent
historical information and on the basis of reasonable assumptions at the time
of such preparation.


 


(c)                                  To the
knowledge of the Company after due and careful enquiry, any expressions of
opinion or intention in the Information Package, other than those attributable
to persons other than the management of the Acquired Group and other than in
the Commercial Report, were made in all material respects after due and careful
consideration and based on reasonable grounds.


 


(d)                                 To the
knowledge of the Company after due and careful enquiry, nothing has occurred or
been omitted from the Information Package (other than the Commercial Report)
and no information has been given or withheld that
results in:


 


(i)                                     any of the
material factual information contained in the Information Package relating to
the Acquired Group (other than the Commercial Report) being untrue or
misleading in any material respect; or


 


(ii)                                  any of the
projections, forecasts or expressions of opinion or intention contained in the
Information Package relating to the Acquired Group (other than the Commercial
Report) being based on unreasonable assumptions; or


 


(iii)                               any assumptions on which any of the projections,
forecasts or expressions of opinion or intention contained in the Information
Package relating to the Acquired Group (other than the Commercial Report) are
based being unreasonable or unsound.


 


22.8         Financial
statements


 


(a)                                  The
Original Financial Statements of the Acquired Group were prepared in accordance
with GAAP.


 


(b)                                 To the
knowledge of the Company after due and careful enquiry, the Original Financial
Statements of the Acquired Group fairly represents its financial condition and
operations as at the end of the relevant financial year and the most recent
unaudited consolidated monthly financial statements of the Acquired Group
fairly represent its financial condition and operations as at the end of the
Accounting Month to which they relate.


 


(c)                                  To the
knowledge of the Company after due and careful enquiry, there has been no
material adverse change in its assets, business, financial condition or
prospects since the date to which the Accountants’ Report was drawn up.


 


(d)                                 The
financial year end of the Group is 31 December.


 


(e)                                  The
Financing Case was prepared in accordance with the assumptions contained in the
Financing Case and financial reference periods of the Target consistently
applied.


 


22.9         Pari passu
ranking


 


Subject
to any applicable Reservations and Perfection Requirements, its payment
obligations under the Senior Finance Documents rank at least pari passu with the claims of all its
other unsecured and unsubordinated creditors, except for obligations
mandatorily preferred by law applying to companies generally.


 


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22.10       No
proceedings pending or threatened


 


(a)                                  To the
knowledge of the Company after due and careful enquiry, no litigation,
arbitration or administrative proceedings or investigations of or before any
court, arbitral body or agency (including any arising from or relating to Environmental
Law) which are reasonably likely to be adversely determined and would
reasonably be expected to have a Material Adverse Effect, have been started or,
are threatened against it or any of its Subsidiaries or any member of the
Acquired Group.


 


(b)                                 To the
knowledge of the Company after due and careful enquiry, no labour disputes
which would reasonably be expected to have a Material Adverse Effect are
current or, threatened against it or any of its Subsidiaries.


 


22.11       Environmental
Laws and Licences


 


To
the knowledge of the Company after due and careful enquiry, it and each of its
Subsidiaries has (and each member of the Acquired Group has):


 


(a)                                  complied with all Environmental Laws to which it may be
subject;


 


(b)                                 all Environmental Licences required or desirable in
connection with its business; and


 


(c)                                  complied with the terms of those Environmental Licences,


 


in each case where failure to do so would reasonably be
expected to have a Material Adverse Effect.


 


22.12       Environmental
releases


 


To
the knowledge of the Company after due and careful enquiry, no:


 


(a)                                  property
currently or previously owned, leased, occupied or controlled by it or any of
its Subsidiaries or any Acquired Group Member (including any offsite waste
management or disposal location utilised by it or any of its Subsidiaries) is
contaminated with any Hazardous Substance; and


 


(b)                                 discharge, release, leaching, migration or escape of any
Hazardous Substance into the Environment has occurred or is occurring on, under
or from that property,


 


in each case in circumstances where this would
reasonably be expected to have a Material Adverse Effect.


 


22.13       Investor
Documents and Bridge Facility Finance Documents


 


(a)                                  The
Investor Documents:


 


(i)                                     contain
all the material terms of the agreement and arrangements between the Investors
(and/or any of their respective Affiliates) and any member of the Group (and/or
any of their respective Affiliates) in relation to investment (whether by way
of equity, debt or otherwise) in the Group save for, until the Completion Date,
any shareholders’ agreements between the Re-Investors and the Acquired Group;


 


(ii)                                  subject to
any conditions as to the unconditionality of the other Transaction Documents,
are or, simultaneously with the date of the first Utilisation Request will be,
in full force and effect; and


 


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(iii)                               have not been amended or waived (in whole or in part) and
no consent has been given thereunder, save for any which are minor or technical
or have been approved in writing by the Agent (acting on the instructions of
the Majority Lenders).


 


(b)                                 The Bridge
Facility Finance Documents:


 


(i)                                     contain all the material terms of the agreement and
arrangements between the Bridge Facility Finance Parties (and/or any of their
respective Affiliates) and any member of the Group (and/or any of their
respective Affiliates) in relation to the Bridge Facility;


 


(ii)                                  subject to
any conditions as to the unconditionality of the other Transaction Documents,
are or, simultaneously with the date of the first Utilisation Request will be,
in full force and effect; and


 


(iii)                               have not been amended or waived (in whole or in part) and
no consent has been given thereunder, save for any which are minor or technical
or have been approved in writing by the Agent (acting on the instructions of
the Majority Lenders).


 


22.14       Group
structure


 


(a)                                  To the
knowledge of the Company after due and careful enquiry, the Group Structure
Chart shows:


 


(i)                                     each
member of the Group and any person in whose shares any member of the Group has
an interest (and, other than in relation to Target, the percentage of the
issued share capital held, and whether legally or beneficially, by that
member), in each case both as at the date of this Agreement and, in the case of
an Acquired Group Member, as it will be immediately after the Completion Date;


 


(ii)                                  the jurisdiction of incorporation or establishment of
each person shown in it; and


 


(iii)                               each person shown in it which is a Dormant Company.


 


(b)                                 Each
Obligor, other than the Holdcos and the Target, is on the Completion Date
directly or indirectly a wholly-owned Subsidiary of the Target.


 


(c)                                  DDBCo is a
directly wholly-owned Subsidiary of the Company.


 


(d)                                 Midco is a
directly wholly-owned Subsidiary of DDBCo.


 


(e)                                  Newco is a
directly wholly-owned Subsidiary of Midco.


 


22.15       No
prior business


 


None
of the Holdcos:


 


(a)                                  has traded or carried on any business;


 


(b)                                 has any material liability or obligation (actual or
contingent, present or future) other than in respect of the Acquisition Costs;
or


 


(c)                                  has
entered into any contract and, in particular, has not made any disposal or
acquisition of any shares (other than shares in the Holdcos and the Target) or
any business (other than that of a holding company) or granted any Security,


 


other than as contemplated by or in connection with
the Transaction Documents or the Funds Flow Memorandum.


 


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22.16       No
Financial Indebtedness or Security


 


(a)                                  No Holdco
has any Financial Indebtedness at the date of this Agreement other than
Permitted Financial Indebtedness.


 


(b)                                 No
Security exists over the assets of the Company, Midco, DDBCo or Newco other
than Permitted Security.


 


22.17       Shares


 


(a)                                  Newco will
be entitled forthwith after the Completion Date (but subject to registration in
the shareholders’ register of the Target) to become the legal registered owner
of the entire issued share capital of the Target, free from all Security.


 


(b)                                 Other than
under the Bridge Facility Warrant Instrument, any Investor Document or any
Existing Share Option Schemes, no person has or is entitled to or, to the
knowledge of the Company after due and careful enquiry in the case of an
Acquired Group Member, immediately upon becoming a Subsidiary of the Group, no
person has or will be entitled to, any conditional or unconditional option,
warrant or other right to call for the issue or allotment of, subscribe for,
purchase or otherwise acquire any share capital of any member of the Group
(including any right of pre-emption, conversion or exchange).


 


22.18       Intellectual
Property Rights


 


To
the knowledge of the Company after due and careful enquiry:


 


(a)                                  each
member of the Group owns or has licensed to it on arm’s length terms all the
Intellectual Property Rights that are material for the conduct of its business
as it is presently being conducted;


 


(b)                                 each
member of the Group has taken all necessary action (including payments of fees)
to safeguard, maintain in full force and effect and preserve its ability to
enforce all such material Intellectual Property Rights, except where the
failure to take such action would not reasonably be expected to have a Material
Adverse Effect;


 


(c)                                  no member
of the Group has infringed any Intellectual Property Rights of any third party
in any manner which would be reasonably expected to have a Material Adverse
Effect; and


 


(d)                                 there has
been no infringement or threatened or suspected infringement of or challenge to
the validity of any Intellectual Property Rights owned by or licensed to any
member of the Group which would reasonably be expected to have a Material
Adverse Effect.


 


22.19       Solvency


 


To
the knowledge of the Company after due and careful enquiry:


 


(a)                                  no Obligor is insolvent or unable to pay its debts
(including subordinated and contingent debts), nor could it be deemed by a
court to be unable to pay its debts within the meaning of:


 


(i)                                     (in the case of a company incorporated in England or Wales)
section 123(1)(e) or 123(2) of the Insolvency Act 1986; or


 


(ii)                                  (in the case of any other company) the law of the
jurisdiction in which it is incorporated.


 


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nor, in any such case, will it become so in consequence
of entering into any Transaction Document, making the Acquisition, and/or performing
any transaction contemplated by any Transaction Document;


 


(b)                                 other than
the proceedings referred to in paragraph (b) of Clause 26.7 (Insolvency proceedings), no Obligor has
taken any corporate action nor have any legal proceedings or other procedure or
step been taken, started or, to the knowledge of the Company after due and
careful enquiry, threatened in relation to anything referred to in Clause 26.7
(lnsolvency proceedings).


 


22.20       Taxes


 


To
the knowledge of the Company after due and careful enquiry, each Holdco and
each Material Subsidiary has paid all Taxes required to be paid by it within
the time period allowed for payment without incurring any material penalties
for non-payment, other than any Taxes:


 


(a)                                  being contested by it in good faith and in accordance with
the relevant procedures;


 


(b)                                 which have been disclosed to the Mandated Lead Arrangers
and for which adequate reserves are being maintained in accordance with GAAP;
and


 


(c)                                  where payment can be lawfully withheld and will not result
in the imposition of any material penalty nor in any Security ranking in
priority to the claims of any Senior Finance Party under any Senior Finance
Document or to any Security created under any Security Document.


 


22.21       Pensions


 


(a)                                  Save as
disclosed in the Accountants’ Report and the Due Diligence Report, to the
knowledge of the Company after due and careful enquiry, no member of the Group
has any material liability in respect of any pension scheme and there are no
circumstances which would give rise to such a liability.


 


(b)                                 To the
knowledge of the Company after due and careful enquiry, each member of the
Group is in compliance in all material respects with all material applicable
laws and material contracts relating to and the governing provisions of the
pension schemes maintained by or for the benefit of any member of the Group
and/or any of its employees.


 


22.22       Satellites


 


(a)                                  To the
knowledge of the Company after due and careful enquiry, the Acquired Group (A)
has good title to one I2 Satellite and to all five I3 Satellites and (B) has
leased to it three other I2 Satellites with exclusive rights to use the same as
envisaged by the Financing Case.


 


(b)                                 To the
knowledge of the Company after due and careful enquiry, none of the satellites
that have been brought into use by the Group are subject to harmful
interference from other satellites that is materially adversely effecting the
operation of such satellites.


 


(c)                                  In
relation to the bringing into use of the fleet of I4 Satellites, to the
knowledge of the Company after due and careful enquiry, the Group is not aware
of any undue interference from other satellites that would materially adversely
effect the operation of each such I4 Satellite.


 


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22.23       Documents
provided


 


(a)                                  All
documents that are or have been provided to the Agent under Clause 4.1 (Initial conditions precedent) are in each
case the complete document in all material respects.


 


(b)                                 All of the
certified copies or copies of documents provided to the Agent under Clause 4.1
(Initial Conditions precedent) or
Clause 28.2 (Additional Borrowers)
are true, complete and accurate copies of the original documents in all
material respects.


 


22.24       Knowledge
of the Company


 


For
the purpose of this Clause 22:


 


(a)                                  any obligation of the Company to make due and careful
review and enquiry shall be satisfied by due and careful review and enquiry
being made by it of its directors;


 


(b)                                 in relation to representations and warranties made on
the date of the first Utilisation Request and the first Utilisation, references
to the Group shall be deemed to include each Holdco and each Material
Subsidiary;


 


(c)                                  it is assumed that the Company has the knowledge of its
directors; and


 


(d)                                 as from the later of the Completion Date and the
Syndication Date, the Company is assumed to have the knowledge of the
management of the Acquired Group.


 


22.25       Times
on which representations made


 


(a)                                  The
representations and warranties set out in this Clause 22 (except for
Clause 22.7 (Information Package)
insofar as it relates to the Information Memorandum) are:


 


(i)                                     made by each Original Obligor on the date of this
Agreement; and


 


(ii)                                  deemed to be made by each Obligor on the first Utilisation
Date by reference to the facts and circumstances then existing.


 


(b)                                 The
representations and warranties set out in Clause 22.7 (Information Package) (in so far as it
relates to the Information Memorandum) are deemed to be made by each Obligor
(to the extent provided at the beginning of this Clause 22) by reference to the
facts and circumstances then existing on:


 


(i)                                     each date on which the Information Memorandum is approved;
and


 


(ii)                                  the Syndication Date,


 


subject in each case to written disclosure by the
Company.


 


(c)                                  The
Repeating Representations (and paragraphs (a) and (b) of Clause 22.8 (Financial statements) in relation to
financial statement delivered by that Obligor) are deemed to be made by each
Obligor by reference to the facts and circumstances then existing on:


 


(i)                                     the date of each Utilisation Request and the first day of
each Interest Period; and


 


(ii)                                  in the case of an Additional Obligor, the day on which
that person becomes (or it is proposed that that person becomes) an Additional
Obligor.


 


(d)                                 If any
Report subject to representations and warranties to be repeated as set out in
Clause 22.25 (Time on which
representations made) is dated and delivered after the date of this


 


103





















 


Agreement,
the representation and warranty in relation to such Report shall be made in
respect of such Report on such date by reference to the facts and circumstances
existing at such date.


 


23.           INFORMATION UNDERTAKINGS


 


The
undertakings in this Clause 23 remain in force from the date of this Agreement
for so long as any amount is outstanding under the Senior Finance Documents or
any Commitment is in force.


 


23.1         Annual
financial statements


 


Newco
shall supply to the Agent in sufficient copies for all the Lenders as soon as
the same become available, but in any event within 120 days after the end of
each of its financial years the audited consolidated financial statements of
the Group for that financial year and, to the extent required by any Lender to
comply with regulatory provisions applicable to it, the audited financial
statements of each member of the Group for that financial year.


 


23.2         Monthly
financial statements


 


(a)                                  Newco
shall for the first 3 months after the Completion Date supply to the Agent in
sufficient copies for all the Lenders as soon as the same become available, but
in any event within 30 days after the end of each Accounting Month, the
consolidated monthly financial statements for the Target for that Accounting
Month and shall use reasonable endeavours to procure that such monthly
financial statements include:


 


(i)                                     a consolidated cashflow statement and profit and loss
account for the Group for the relevant Accounting Month and for the financial
year to date;


 


(ii)                                  a consolidated balance sheet of the Group as at the end
of the relevant Accounting Month;


 


(iii)                               a comparison of actual performance with the performance
projected by the Budget for the relevant Accounting Month and for the financial
year to date;


 


(iv)                              a summary of Capital Expenditure in relation to the I4
Programme for the financial year to date; and


 


(v)                                 management commentary on the Group’s performance during the
relevant Accounting Month and any material developments or proposals affecting
the Group or its business.


 


(b)                                 Newco
shall for each Accounting Month falling more than 3 months after the Completion
Date, supply to the Agent in sufficient copies for all the Lenders as soon as
the same become available, but in any event within 30 days after the end of
each Accounting Month the consolidated monthly financial statements of the
Group for that Accounting Month.


 


(c)                                  Each set
of consolidated monthly financial statements delivered pursuant to paragraph
(b) above shall include:


 


(i)                                     a consolidated cashflow statement and profit and loss
account of the Group for the relevant Accounting Month and for the financial
year to date;


 


(ii)                                  a consolidated balance sheet of the Group as at the end
of the relevant Accounting Month;


 


104





















 


(iii)                               a
comparison of actual performance with the performance projected by the Budget
for the relevant Accounting Month, for the financial year to date and, in the
case of financial statements for periods ending less than 1 year after the
Completion Date and in relation to the profit and loss account only, against
the corresponding Accounting month in the previous financial year;


 


(iv)                              a summary of Capital Expenditure in relation to the I4
Programme for the financial year to date;


 


(v)                                 to the extent applicable, set out (in reasonable detail)
the calculation of the Margin under Clause 12.5 (Adjustment of Margin) for each Testing
Period ending on a date falling at least 12 months after the Completion Date;


 


(vi)                              (in the
case of financial statements for periods ending more than 1 year after the
Completion Date) a comparison with the corresponding Accounting Month, and the
year-to-date performance, in the previous year, including commentary from the
Chief Executive Officer and the Chief Financial Officer; and


 


(vii)                           management
commentary on the Group’s performance during the relevant Accounting Month
(including, in the case of financial statements for periods ending more than
1 year after the Completion Date, a comparison with budgeted performance
and performance in the previous year and commentary from the Chief Executive
Officer and the Chief Financial Officer) and any material developments or
proposals affecting the Group or its business.


 


23.3         Compliance
Certificate


 


(a)                                  Newco
shall supply to the Agent within 30 days of the end of each Accounting Quarter,
a Compliance Certificate which shall:


 


(i)                                     set out
(in reasonable detail) computations as to compliance with Clause 24 (Financial Covenants) and Clause 25.23 (Security and guarantees) as at, or, as the
case may be, in respect of the Testing Period ending on, the most recent
Accounting Quarter; and


 


(ii)                                  confirm that no Default is continuing (or if a Default is
continuing, specify the Default and the steps being taken to remedy it).


 


(b)                                 The
Compliance Certificate in relation to the fourth Accounting Quarter (being the
Accounting Quarter ending on 31 December) in each financial year of the Company
shall also:


 


(i)                                     set out (in reasonable detail) the computation of Surplus
Cashflow for that financial year;


 


(ii)                                  in respect
of Testing Periods ending on 31 December and which end at least 12 months after
the date of this Agreement, set out (in reasonable detail) the computation of
the Margin under Clause 12.5 (Adjustment of
Margin);


 


(iii)                               set out
(in reasonable detail) the Capital Expenditure for that financial year and
demonstrating compliance with Clauses 24.4 (I4
Capex limit) and 24.5 (Other
Capex limit); and


 


(iv)                              set out
the Material Subsidiaries and (in reasonable detail) the computations for the
determination of which members of the Group are Material Subsidiaries to the
extent that there has been any change.


 


105





















 


(c)                                  Each
Compliance Certificate shall be signed by the Chief Financial Officer and 1
other director of Newco and, in respect of the Compliance Certificate in
relation to the fourth Accounting Quarter in each financial year of the
Company, shall be reported on by the Company’s auditors in the Agreed Form at
the same time as the audited consolidated financial statements of the Group are
delivered.


 


(d)                                 After the
financial year-end of the Company and, once the audited consolidated financial
statements of the Group are available, Newco shall deliver a reconciliation of
the audited financial statements of the Group for that financial year and the
management accounts of the Group as at the end of that financial year.


 


23.4         Requirements
as to financial statements


 


(a)                                  Each set
of financial statements delivered by Newco pursuant to Clause 23.1 (Annual financial statements) or Clause
23.2 (Monthly financial statements)
shall be certified by a director of the relevant company and the Chief
Financial Officer as fairly representing its (or, as the case may be, its
consolidated) financial condition and operations as at the end of and for the
period in relation to which those financial statements were drawn up.


 


(b)                                 Newco
shall procure that each set of financial statements of an Obligor delivered
pursuant to Clause 23.1 (Annual financial
statements) is prepared using GAAP, accounting practices and
financial reference periods in each case consistent with the Applicable
Accounting Principles and each set of financial statements of an Obligor
delivered pursuant to Clause 23.2 (Monthly
financial statements) is based on financial practices used in the
preparation of the Financing Case unless, in relation to any set of financial
statements, it notifies the Agent that there has been a change in GAAP, the
accounting practices or reference periods or, as the case may be, financial
practices and its auditors (or, if appropriate, the auditors of the Obligor)
deliver to the Agent:


 


(i)                                     a description of any change necessary for the relevant
financial statements to reflect the Applicable Accounting Principles; and


 


(ii)                                  sufficient
information, in form and substance as may be reasonably required by the Agent,
to enable the Lenders to determine whether the covenants contained in Clause 24
(Financial covenants) have been
complied with, to calculate the Surplus Cashflow, to determine any other
relevant matter and/or to make an accurate comparison between the financial
position indicated in those financial statements and that Obligor’s Original
Financial Statements.


 


Any
reference in this Agreement to those financial statements shall be construed as
a reference to those financial statements as adjusted to reflect the Applicable
Accounting Principles.


 


23.5         Annual
Budget


 


(a)                                  Newco
shall supply to the Agent in sufficient copies for all the Lenders as soon as
the same becomes available, but in any event no later than 30 days after the
start of each of the financial years of the Company, a Budget in respect of
that next financial year in the Agreed Form.


 


(b)                                 Each
Budget shall include:


 


(i)                                     a projected consolidated cashflow statement and profit
and loss account of the Group for that financial year and for each Accounting
Month of that financial year;


 


106





















 


(ii)                                  a projected consolidated balance sheet of the Group as
at the end of each Accounting Month of that financial year;


 


(iii)                               a summary of the Capital Expenditure projected to be
made by the Group during each Accounting Month of that financial year;


 


(iv)                              projected
levels of the financial ratios in Clause 24 (Financial
Covenants) as at the end of, or, as the case may be, in respect of
the Testing Period ending at the end of, each Accounting Quarter of that
financial year;


 


(v)                                 projected EBITDA of the Group for that financial year and for
each Accounting Month of that financial year; and


 


(vi)                              a management commentary on:


 


(A)                              the proposed activities of the Group during that year;
and


 


(B)                                the principal assumptions underlying the projections in
that Budget; and


 


(C)                                Capital
Expenditure in relation to the I4 Programme.


 


(c)                                  If
requested and on reasonable notice, the directors and the Chief Financial
Officer of Newco shall give a presentation to the Lenders in each financial
year after Newco has delivered the audited consolidated financial statements of
the Group for the previous financial year pursuant to Clause 23.1 (Annual financial statements), about the
business, financial performance and prospects of the Group, and such other
material matters as any Senior Finance Party (through the Agent) may reasonably
request.


 


23.6                           Information: miscellaneous


 


Newco
shall supply to the Agent (in sufficient copies for all the Lenders, if the Agent
so requests):


 


(a)                                  copies of all formal documents dispatched by the Company to:


 


(i)                                     its shareholders, in their capacity as shareholders,
generally (or any class of them); or


 


(ii)                                  or its creditors generally (or any class of them);


 


in each case, at the same time as they are dispatched;


 


(b)                                 promptly
upon becoming aware of them, the details of any litigation, arbitration or
administrative proceedings which are current, threatened or pending against any
member of the Group or the Acquired Group, and which would be reasonably
likely, if adversely determined, to have a Material Adverse Effect;


 


(c)                                  promptly
upon becoming aware of them, the details of any claim, notice or other
communication received by it in respect of any actual or alleged breach of or liability
under Environmental Law which, if substantiated, would be reasonably expected
to have a Material Adverse Effect;


 


(d)                                 promptly
upon becoming aware of it, any change in the structure of the Group from that
set out in the Group Structure Chart which is or would be reasonably likely to
be materially adverse to the security interests of the Senior Finance Parties;


 


107





















 


(e)                                  promptly,
such further information regarding the Acquisition or the financial condition,
business or operations of any member of the Group or the Acquired Group as any
Senior Finance Party (through the Agent) may reasonably request (and in
determining reasonableness for these purposes, account shall be taken of the
cost and time incurred and taken to provide such information); and


 


(f)                                    promptly upon receipt, a copy of each document under which an
Investor accedes to any Investor Document.


 


23.7                           Notification of Default


 


(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 (unless that
Obligor is aware that a notification has already been provided by another
Obligor).


 


(b)                                 Promptly
upon a request by the Agent, Newco shall supply to the Agent a certificate
signed by the Chief Financial Officer and one of the other directors of the
Company certifying that no Default is continuing (or if a Default is
continuing, specifying the Default and the steps, if any, being taken to remedy
it).


 


23.8                           Inspection of books and records


 


Each
Obligor shall (and the Company shall ensure that each member of the Group will)
permit the Agent or any of its representatives (including any accountants or
other professionals appointed by them for this purpose), at reasonable times
and intervals in each calendar year and in circumstances when any Senior
Finance Party has reasonable grounds for believing that a Default has occurred
or would reasonably be expected to occur, and upon reasonable notice, during
normal business hours to visit any of its offices and to inspect any of its
books and records. The reasonable cost and reasonable expense of each such
visit or inspection shall be borne by Newco, unless in respect of any
investigation instigated by the Agent as a result of any Senior Finance Party
having reasonable grounds for believing that a Default had occurred or would
reasonably be expected to occur, the investigation shows that no Default has
occurred or could reasonably be expected to have occurred.


 


23.9                           Auditors


 


(a)                                  The
Company shall ensure that the same internationally recognised “big four” firm
of accountants is appointed as its auditors and the auditors of each other
member of the Group.


 


(b)                                 No Obligor
shall (and the Company shall ensure that no other member of the Group will)
change its auditors without the consent of the Majority Lenders unless the new
auditor to be appointed is one of the internationally recognised “big four”
firms of accountants.


 


(c)                                  The
Company shall ensure that the financial year end of the Group and each member
of the Group is 31 December.


 


(d)                                 No Obligor
shall (and the Company shall ensure that no other member of the Group will)
change its financial year end or the end of its Accounting Quarter or
Accounting Month without the consent of the Majority Lenders, other than to
conform its financial year end to that of the Company.


 


108





















 


23.10                     Use of websites


 


(a)                                  The
Company may satisfy its obligation under this Agreement to deliver any
information in relation to those Lenders (the “Website Lenders”) who accept this method of communication by
posting this information onto an electronic website designated by the Company
and the Agent (the “Designated Website”)
if:


 


(i)                                     the Agent expressly agrees (after consultation with each
of the Lenders) that it will accept communication of the information by this
method;


 


(ii)                                  both the Company and the Agent are aware of the address of
and any relevant password specifications for the Designated Website; and


 


(iii)                               the information is in a format previously agreed between
the Company and the Agent.


 


If
any Lender (a “Paper Form Lender”)
does not agree to the delivery of information electronically then the Agent
shall notify the Company accordingly and the Company shall supply the
information to the Agent (in sufficient copies for each Paper Form Lender) in
paper form. In any event the Company shall supply the Agent with at least 1
copy in paper form of any information required to be provided by it.


 


(b)                                 The Agent
shall supply each Website Lender with the address of and any relevant password
specifications for the Designated Website following designation of that website
by the Company and the Agent.


 


(c)                                  The
Company shall promptly upon becoming aware of its occurrence notify the Agent
if:


 


(i)                                     the Designated Website cannot be accessed due to
technical failure;


 


(ii)                                  the password specifications for the Designated Website
change;


 


(iii)                               any new information which is required to be provided
under this Agreement is posted onto the Designated Website;


 


(iv)                              any existing information which has been provided under
this Agreement and posted onto the Designated Website is amended; or


 


(v)                                 the Company becomes aware that the Designated Website or
any information posted onto the Designated Website is or has been infected by
any electronic virus or similar software.


 


If
the Company notifies the Agent under paragraph (c)(i)
or paragraph (c)(v) above, all information to be provided by the Company under
this Agreement after the date of that notice shall be supplied in paper form
unless and until the Agent and each Website Lender is satisfied that the
circumstances giving rise to the notification are no longer continuing.


 


(d)                                 Any
Website Lender may request, through the Agent, 1 paper copy of any information
required to be provided under this Agreement which is posted onto the
Designated Website. The Company shall comply with any such request within 10
Business Days.


 


23.11                     Know Your Customer Requirements


 


(a)                                  Each
Obligor shall promptly upon the request of the Agent or any Lender, and each
Lender shall promptly upon the request of the Agent supply, or procure the
supply of, such documentation and other evidence as is reasonably requested by
the Agent (for itself or on behalf of any


 


109





















 


Lender)
or any Lender (for itself or on behalf of any prospective New Lender) in order
for the Agent, such Lender or any prospective New Lender to carry out and be
satisfied with the results of all necessary “know your customer” or other
checks in relation to the identity of any person that it is required to carry
out in relation to the transactions contemplated in the Finance Documents.


 


(b)                                 The
Company shall, by not less than 10 Business Days’ written notice to the Agent,
notify the Agent (which shall promptly notify the Lenders) of its intention to
request that one of its Subsidiaries becomes an Additional Obligor pursuant to
Clause 28 (Changes to the Obligors).


 


(c)                                  Following
the giving of any notice pursuant to paragraph (b) above, the Company shall
promptly upon the request of the Agent or any Lender supply, or procure the
supply of, such documentation and other evidence as is reasonably requested by
the Agent (for itself or on behalf of any Lender) or any Lender (for itself or
on behalf of any prospective New Lender) in order for the Agent, such Lender or
any prospective New Lender to carry out and be satisfied with the results of
all necessary “know your customer” or other checks in relation to the identity of
any person that it is required to carry out in relation to the accession of
such Additional Obligor to this Agreement.


 


23.12                     Scheme of Arrangement information


 


(a)                                  The
Company shall use all reasonable endeavours to obtain and shall, upon receipt,
promptly supply to the Agent:


 


(i)                                     sufficient
copies for the Lenders of all Scheme Documents and each other document relating
to the Scheme of Arrangement (including, any petition, any affidavit, any
summons, any notice or any order); and


 


(ii)                                  each draft of the Scheme Documents produced on or after
the date of the Press Release.


 


(b)                                 The
Company shall promptly supply to the Agent any information relating to the
Scheme of Arrangement which any Lender may reasonably request (but not to the
extent access to, or knowledge of, such information would be illegal).


 


23.13                     No personal liability


 


No
director, officer or employee of the Company or any other member of the Group
shall be personally liable for any statement made by it in any certificate or
other document as required to be delivered pursuant to any Senior Finance Party
pursuant to the Senior Finance Documents.


 


24.                                 FINANCIAL COVENANTS


 


24.1                           Total Net Interest Cover


 


The Company shall ensure that the ratio of EBITDA to
Total Net Interest Payable for each Testing Period ending on a Testing Date set
out in column (1) of the table below shall not be lower than the ratio set out
in column (2) of the table opposite that date:


 


110





















 




	
  (1)
  - Testing Date

  	
   

  	
  (2) - EBITDA/Total Net Interest

  Payable

  	
   

  
	
  30 June 2004

  	
   

  	
  2.10:1

  	
   

  
	
  30 September 2004

  	
   

  	
  2.10:1

  	
   

  
	
  31 December 2004

  	
   

  	
  2.10:1

  	
   

  
	
  31 March 2005

  	
   

  	
  2.10:1

  	
   

  
	
  30 June 2005

  	
   

  	
  2.10:1

  	
   

  
	
  30 September 2005

  	
   

  	
  2.10:1

  	
   

  
	
  31 December 2005

  	
   

  	
  2.10:1

  	
   

  
	
  31 March 2006

  	
   

  	
  2.10:1

  	
   

  
	
  30 June 2006

  	
   

  	
  2.15:1

  	
   

  
	
  30 September 2006

  	
   

  	
  2.15:1

  	
   

  
	
  31 December 2006

  	
   

  	
  2.15:1

  	
   

  
	
  31 March 2007

  	
   

  	
  2.20:1

  	
   

  
	
  30 June 2007

  	
   

  	
  2.30:1

  	
   

  
	
  30 September 2007

  	
   

  	
  2.40:1

  	
   

  
	
  31 December 2007

  	
   

  	
  2.50:1

  	
   

  
	
  31 March 2008

  	
   

  	
  2.65:1

  	
   

  
	
  30 June 2008

  	
   

  	
  2.75:1

  	
   

  
	
  30 September 2008

  	
   

  	
  2.75:1

  	
   

  
	
  31 December 2008

  	
   

  	
  2.90:1

  	
   

  
	
  31 March 2009

  	
   

  	
  2.90:1

  	
   

  
	
  30 June 2009

  	
   

  	
  2.90:1

  	
   

  
	
  30 September 2009

  	
   

  	
  2.95:1

  	
   

  
	
  31 December 2009

  	
   

  	
  3.05:1

  	
   

  
	
  31 March 2010

  	
   

  	
  3.15:1

  	
   

  
	
  30 June 2010 and
  thereafter

  	
   

  	
  3.15:1

  	
   

  






 


24.2                           Total Net Debt to EBITDA and Senior Net Debt to EBITDA


 


The Company shall ensure
that:


 


(a)                                  the ratio of Total Net Debt on a Testing Date
set out in column (1) of the table set out below to EBITDA for the Testing
Period ending on that Testing Date shall not be higher than the ratio set out
in column (2) of the table opposite that date; and


 


(b)                                 the ratio of Senior Net Debt on a Testing Date
set out in column (1) of the table set out below to EBITDA for the Testing
Period ending on that Testing Date shall not be higher than the ratio set out
in column (3) of the table opposite that date:


 


111





















 


	
  (1)
  - Testing Date

  	
   

  	
  (2) - Total Net

  Debt/EBITDA

  	
   

  	
  (3) - Senior Net

  Debt/EBITDA

  	
   

  
	
  30 June 2004

  	
   

  	
  5.30:1

  	
   

  	
  3.80:1

  	
   

  
	
  30 September 2004

  	
   

  	
  5.30:1

  	
   

  	
  3.80:1

  	
   

  
	
  31 December 2004

  	
   

  	
  5.30:1

  	
   

  	
  3.80:1

  	
   

  
	
  31 March 2005

  	
   

  	
  5.30:1

  	
   

  	
  3.80:1

  	
   

  
	
  30 June 2005

  	
   

  	
  5.30:1

  	
   

  	
  3.80:1

  	
   

  
	
  30 September 2005

  	
   

  	
  5.30:1

  	
   

  	
  3.80:1

  	
   

  
	
  31 December 2005

  	
   

  	
  5.30:1

  	
   

  	
  3.80:1

  	
   

  
	
  31 March 2006

  	
   

  	
  5.30:1

  	
   

  	
  3.65:1

  	
   

  
	
  30 June 2006

  	
   

  	
  5.20:1

  	
   

  	
  3.50:1

  	
   

  
	
  30 September 2006

  	
   

  	
  5.10:1

  	
   

  	
  3.35:1

  	
   

  
	
  31 December 2006

  	
   

  	
  4.90:1

  	
   

  	
  3.10:1

  	
   

  
	
  31 March 2007

  	
   

  	
  4.60:1

  	
   

  	
  3.00:1

  	
   

  
	
  30 June 2007

  	
   

  	
  4.20:1

  	
   

  	
  2.80:1

  	
   

  
	
  30 September 2007

  	
   

  	
  4.10:1

  	
   

  	
  2.60:1

  	
   

  
	
  31 December 2007

  	
   

  	
  3.90:1

  	
   

  	
  2.50:1

  	
   

  
	
  31 March 2008

  	
   

  	
  3.90:1

  	
   

  	
  2.50:1

  	
   

  
	
  30 June 2008

  	
   

  	
  3.80:1

  	
   

  	
  2.50:1

  	
   

  
	
  30 September 2008

  	
   

  	
  3.70:1

  	
   

  	
  2.50:1

  	
   

  
	
  31 December 2008

  	
   

  	
  3.50:1

  	
   

  	
  2.50:1

  	
   

  
	
  31 March 2009

  	
   

  	
  3.50:1

  	
   

  	
  2.50:1

  	
   

  
	
  30 June 2009

  	
   

  	
  3.50:1

  	
   

  	
  2.50:1

  	
   

  
	
  30 September 2009

  	
   

  	
  3.50:1

  	
   

  	
  2.50:1

  	
   

  
	
  31 December 2009

  	
   

  	
  3.50:1

  	
   

  	
  2.50:1

  	
   

  
	
  31 March 2010

  	
   

  	
  3.50:1

  	
   

  	
  2.50:1

  	
   

  
	
  30 June 2010 and thereafter

  	
   

  	
  3.50:1

  	
   

  	
  2.50:1.

  	
   

  



 


24.3                           Fixed Charge Cover


 


The Company shall ensure the
ratio of Cashflow to Net Debt Service for each Testing Period ending on each
Testing Date shall not be less than 1:1.


 


112


















 


24.4                           I4 Capex limit


 


The Company shall ensure
that during each period set out in column (1) of the table below I4 Capex
during that period shall not exceed the amount set out opposite that period in
column (2) of the table below.


 


	
  (1)
  - Period

  	
   

  	
  (2) - I4 Capex limit

  
	
  18 months to 31 December
  2004

  	
   

  	
  117.5% of the cumulative
  I4 Capex contemplated in the Financing Case for that period

  
	
   

  	
   

  	
   

  
	
  30 months to 31 December
  2005

  	
   

  	
  110% of the cumulative I4
  Capex contemplated in the Financing Case for that period

  
	
   

  	
   

  	
   

  
	
  42 months to 31 December
  2006

  	
   

  	
  110% of the cumulative I4
  Capex contemplated in the Financing Case for that period

  
	
   

  	
   

  	
   

  
	
  12 months to 31 December
  2007

  	
   

  	
  The lesser of (A) the
  cumulative I4 Capex for the 42 months to 31 December 2006 contemplated in the
  Financing Case minus the actual amount of I4 Capex in that period and (B)
  $19,000,000.

  
	
   

  	
   

  	
   

  
	
  Thereafter

  	
   

  	
  Zero

  



 


24.5                           Other Capex limit


 


(a)                                  The Company shall ensure that during each
period set out in column (1) of the table below Other Capex during that period
shall not exceed the amount set out opposite that period in column (2) of the
table below:


 


	
  (1)
  - Period

  	
   

  	
  (2) - Other Capex limit

  	
   

  
	
  18 months to 31 December
  2004

  	
   

  	
  $

  	
  45,000,000

  	
   

  
	
  12 months to 31 December
  2005

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  12 months to 31 December
  2006

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  12 months to 31 December
  2007

  	
   

  	
  $

  	
  40,000,000

  	
   

  
	
  12 months to 31 December
  2008

  	
   

  	
  $

  	
  40,000,000

  	
   

  
	
  12 months to 31 December
  2009

  	
   

  	
  $

  	
  40,000,000

  	
   

  
	
  12 months to 31 December
  2010

  	
   

  	
  $

  	
  40,000,000

  	
   

  
	
  12 months to 31 December
  2011

  	
   

  	
  $

  	
  125,000,000

  	
  .

  



 


(b)                                 If the amount of Other Capex incurred in any
period set out in column (1) of the table above is less than the amount set out
opposite that period in column (2) of the table above then 50% of


 


113





















 


such unspent Other Capex during such period may
be carried forward into the next period set out in column (2) of the table
above (but into no other such period).


 


(c)                                  For the avoidance of doubt, Other Capex may
be incurred for the acquisitions of businesses where the assets of such
businesses would be treated as capital expenditure if such assets were acquired
by a member of the Group and any such incurrence shall count as Capital
Expenditure for the purposes of this Agreement.


 


24.6                           Financial covenant calculations


 


(a)                                  Capex,
Capital Expenditure, Cashflow, EBITDA, Exceptional I4 Development Costs, I4
Capex, Net Debt Service, Other Capex, Senior Net Debt, Thuraya Lease Costs,
Total Net Debt, Total Net Interest Payable and Working Capital shall be
calculated and interpreted on a consolidated basis in accordance with the
Applicable Accounting Principles and shall be expressed in dollars, excluding
the impact of any fair value adjustment on any acquisition of shares or a
business which is not related to cash.


 


(b)                                 Capex,
Capital Expenditure, Cashflow, EBITDA, Exceptional I4 Development Costs, I4
Capex, Net Debt Service, Other Capex, Senior Net Debt, Thuraya Lease Costs,
Total Net Debt, Total Net Interest Payable and Working Capital shall be
determined (except as needed to reflect the terms of this Clause 24) from
the financial statements of the Group and Compliance Certificates delivered
under Clause 23.1 (Annual financial
statements), Clause 23.2 (Monthly
financial statements) and Clause 23.3 (Compliance Certificate).


 


(c)                                  For the
purpose of this Clause 24, no item shall be included or excluded more than once
in any calculation.


 


(d)                                 For the
purpose of this Clause 24, the effect of all unrealised currency exchange gains
and losses shall be excluded.


 


(e)                                  The tests
set out in Clause 24.1 (Total Net Interest
Cover) to Clause 24.5 (Other
Capex Limit) shall only apply on the dates specified if such date is
at least 5 calendar months after the Completion Date.


 


(f)                                    To the
extent that any period prior to the Completion Date is included in any relevant
period referred to in Clauses 24.1 (Total
Net Interest Cover) to Clause 24.5 (Other
Capex Limit):


 


(i)                                     all references in the covenant definitions to ‘Group’
shall be deemed to be references to Target and its Subsidiaries; and


 


(ii)                                  for the purpose of calculating the tests under Clause
24.1 (Total Net Interest Cover)
to Clause 24.5 (Other Capex Limit),
the Term Facilities shall be deemed to have been drawn down in full on the
Completion Date.


 


(g)                                 All
references to Tax in this Clause 24 shall include payments in relation to Tax
under the Tax and Expenses Indemnity.


 


24.7         Definitions


 


In
this Clause 24:


 


“Capex” means, in relation to any period:


 


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(a)                                  Capital Expenditure incurred on a cash basis
during that period (which, for the avoidance of doubt, shall equal reported
Capital Expenditure and any movements in payables or accruals relating to
Capital Expenditure recorded in the Group’s balance sheet);


 


(b)                                 less any amounts received from suppliers by way
of liquidated damages or otherwise in respect of I4 Capex during that period;


 


(c)                                  less retained insurance proceeds in relation to
launch or in-orbit insurance of the fleet of I4 Satellites which is reinvested
in the Group during that period; and


 


(d)                                 plus any deferred satellite incentive payments in
relation to the I4 Programme made in that period.


 


“Cashflow” means, in relation to any Testing
Period,  EBITDA
for that Testing period adjusted:


 


(a)                                  by deducting any increase or adding any decrease
in Working Capital during that Testing Period;


 


(b)                                 by deducting any decrease or adding any
increase in accounting provisions made during that Testing Period;


 


(c)                                  by excluding any other non-cash items taken into account
in calculating EBITDA (other than to the extent already taken into account in
movements in Working Capital);


 


(d)                                 to the extent included in EBITDA or in any other
paragraph of this definition, by excluding the effect of all cash movements
associated with the Acquisition and any Acquisition Costs;


 


(e)                                  for the
cash effect of extraordinary and exceptional items to the extent that cash was
actually received or expended during that Testing Period (including any cash
costs (i) of any redundancies, (ii) in relation to employee stock options under
the Existing Share Option Schemes, (iii) in relation to payments up to an
aggregate maximum amount of $7,000,000 in settlement of the Airia Dispute and
(iv) in relation to accounting provisions in respect of user terminals which
are held in stock but which the group is contractually committed to provide to
customers, in each case to the extent not taken into account in the calculation
of EBITDA);


 


(f)                                    by adding specific payments from LESOs
identified by the Company as receivable during that Testing Period which are
not received during that Testing Period but which are received in cash less
than 14 days after the end of that Testing Period;


 


(g)                                 by adding the net proceeds of sales of assets
received during that Testing Period (other than such proceeds derived from a
disposal set out in paragraph (a) of the definition of Permitted Disposal);


 


(h)                                 by adding
the aggregate of the amounts received during the Testing Period, and prior to
the delivery of the Compliance Certificate in relation to that Testing Period,
in each case after the Completion Date:


 


(i)                                     by way of net proceeds of subscription for the issue of
shares by the Company to the Investors and/or the Management; and


 


115





















 


(ii)                                  by way of Financial Indebtedness from the Investors
and/or the Management to the Company or Midco,


 


in each
case, that has been on-loaned to Newco and subordinated under the Intercreditor
Agreement;


 


(i)                                     by adding the net proceeds raised from any sale and
leaseback of the City Road Property received during that Testing Period;


 


(j)                                     by adding the amount of any Overfunding
Adjustment during that Testing Period;


 


(k)                                  by adding the amount of any Exceptional I4
Development Costs incurred during that Testing Period to the extent included in
the calculations of Capex or EBITDA;


 


(l)                                     to the extent not included in EBITDA or in any other
paragraph of this definition, by
deducting the amount of any Thuraya Lease Costs incurred during that Testing
Period;


 


(m)                               by deducting amounts paid during the Testing Period by
the Group or which falls due for cash payment during that Testing Period in
respect of Tax;


 


(n)                                 by deducting the amount of any payment made
to the Investors under, or in respect of, the Investor Documents during the
Testing Period (other than any such payment which is a Permitted Payment and
which has been made from Retained Cash);


 


(o)                                 by deducting amounts paid during the Testing Period by
the Group in respect of Capex;


 


(p)                                 by deducting the cash cost of acquisitions made during the
Testing Period to the extent not included in EBITDA;


 


(q)                                 by deducting an amount equal to that added
back under paragraph (f) above for Cashflow in the Testing Period ending on the
Testing Date 12 months prior to the relevant Testing Date; and


 


(r)                                    by deducting costs incurred in issuing the
High Yield Notes (or any other refinancing of the Bridge Facility) during that
Testing Period (whether or not such issue is successful) unless
those costs are financed out of the proceeds of the High Yield Notes (or such other refinancing of the Bridge
Facility, as appropriate).


 


“EBITDA” means, in relation to any Testing
Period, the total consolidated operating profit of the Group for that Testing
Period:


 


(a)                                  before taking into account:


 


(i)                                     any
interest charges, non-cash interest charges or other finance charges in respect
of the Total Borrowings, Investor Debt and any other Permitted Financial
Indebtedness of the Group, in each case, which would be treated as interest
under GAAP;


 


(ii)                                  Tax
accrued in respect of profits earned in that Testing Period;


 


(iii)                               redundancy costs up to an aggregate maximum amount after the
Completion Date of $30,000,000;


 


(iv)                              costs in
relation to employee stock options under the Existing Share Option Schemes;


 


116





















 


(v)                                 any
payment in relation to the settlement of the Airia Dispute up to an aggregate
maximum amount after the Completion Date of $7,000,000;


 


(vi)                              accounting provisions in respect of user terminals which are
held in stock but which the Group is contractually committed to provide to
customers up to an aggregate maximum of $5,000,000;


 


(vii)                           Acquisition
Costs;


 


(viii)                        profits (or losses) attributable to minority interests in any
member of the Group;


 


(ix)           any share of
the profit or loss of any associated company or undertaking, except for
dividends received in cash by any member of the Group;


 


(x)            exchange rate
gains (or losses) arising due to the re-translation of balance sheet items and
mark-to-market adjustments on currency swaps; and


 


(xi)                                all extraordinary and exceptional items;


 


(b)                                 after excluding (to the extent included) any gains or
losses on the disposal (other than in the ordinary course of trading) or
revaluation of assets;


 


(c)                                  after adding back:


 


(i)                                     all amounts provided for depreciation and amortisation;


 


(ii)                                  costs incurred in issuing the High Yield Notes (or
any other refinancing of the Bridge Facility) during that Testing Period (whether
or not such issue is successful);


 


(iii)                               all amounts provided for write-downs in relation to fixed
assets or investments;


 


(iv)                              the amount of any Thuraya Lease Costs incurred
during that Testing Period;


 


(d)                                 and including the Subsidiary EBITDA of a Subsidiary of
the Group acquired by the Group during that Testing Period for the part of that
Testing Period when it was not a Subsidiary of the Group but excluding the
Subsidiary EBITDA attributable to any Subsidiary of the Group sold by the Group
during that Testing Period.


 


“Exceptional I4 Development Costs” means in any Testing Period up
to and including the Testing Period ending on 31 March 2006, the higher of:


 


(a)                                  costs relating to the I4 Programme which are
capitalised in accordance with GAAP; and


 


(b)                                 the aggregate of (i) professional fees in
relation to the I4 Programme and (ii) the advanced networks staff and related
costs,


 


incurred during that Testing Period.


 


“I4 Capex” means, in relation to any period falling on or
before 31 December 2007, Capex incurred during that period which relates
to the I4 Programme (including capitalised costs in relation thereto, where
such costs have been capitalised on a basis consistent with the methodology
used in the Financing Case).


 


“Net Debt Service” means, in respect of any Testing Period:


 


(a)           Total Net Interest Payable for that Testing Period; plus


 


117





















 


(b)                                 the amount of all scheduled repayments of
principal due during that Testing Period under the Term Facilities, the Capex
Facility, the Bridge Facility and the High Yield Notes (or any other
refinancing of the Bridge Facility); plus


 


(c)                                  the amount of any prepayment of the Facilities
which the Group is required to make from the Proceeds of a sale and leaseback
of the City Road Property.


 


“Other Capex” means, in relation to any period, Capex
during that period less, in relation to any such period falling on or before 31
December 2007, I4 Capex during that period but, for the period ending on 31
December 2007, including I4 Satellite performance incentives.


 


“Overfunding Adjustment” means, in respect of any Testing
Period, an amount equal to the aggregate of (A) the amount of Capex during that
Testing Period which has been funded by withdrawal of credit balances from the
Overfunding Account (but, for the avoidance of doubt, excluding amounts withdrawn
from the Overfunding Account for any other purpose) and (B) the amount of any
Capex Facility Loans made during the Testing Period, provided that:


 


(a)                                  such amount shall be deemed never to exceed
$344,000,000;


 


(b)                                 the cumulative amount of Capex funded by
withdrawal of credit balances from the Overfunding Account shall never exceed
the amount of the Overfunding; and


 


(c)                                  if any credit balance is withdrawn from the
Overfunding Account and redeposited in the Overfunding Account then that amount
shall be deemed not to have been applied in funding Capex.


 


“Senior Discount Notes Borrowings” means the
aggregate outstanding principal, capital or nominal amount (including any
accrued “payment in kind” interest but excluding any fixed or minimum premium
payable on prepayment or redemption) under the Senior Discount Notes and/or the
Senior Discount Notes On-Loan.


 


“Senior Net Debt” means as at any particular
time, the aggregate outstanding principal, capital or nominal amount
outstanding (other than fixed or minimum premium payable on prepayment or
redemption) under the Term Facilities, the Capex Facility, the Revolving Credit
Facility and the Ancillary Facilities:


 


(a)                                  plus any amounts drawn from the Overfunding
Account to fund the working capital requirements of the Group at that time;


 


(b)                                 plus any Financial Indebtedness incurred under
paragraphs (f), (l), (j) and (k) of the definition of Permitted Financial
Indebtedness outstanding at that time; and


 


(c)                                  minus Cash and Cash Equivalent Investments at that
time (but excluding any amount of the Overfunding retained by the Group in Cash
or Cash Equivalent Investments at that time).


 


“Testing Date” means each 31 March, 30 June, 30 September and
31 December.


 


“Testing Period” means the period of 12 months ending on the
relevant Testing Date provided that:


 


(a)                                  in respect of the Testing Periods ending on
the Testing Dates of 30 June 2004 and 30 September 2004 and the calculation of
EBITDA, Cashflow, Total Net Interest Payable


 


118





















 


and Net Debt Service for the purposes of Clauses
24.1 (Total Net Interest Cover)
and 24.3 (Fixed Charge Cover), it
shall mean the period from the Completion Date to that Testing Date; and


 


(b)                                 in respect of any Testing Period ending less
than 12 months after the Completion Date in respect of Clause 24.2 (Total Net Debt to EBITDA and Senior Net Debt to
EBITDA) the calculation of EBITDA shall be made for the period of 12
months ending on the Testing Date relating to that Testing Period.


 


“Thuraya Lease Costs”
means, in relation to a Testing Period, costs for leasing transponder capacity
on the Thuraya 1 and 2 satellites during that Testing Period provided that:


 


(a)                                  for the Testing Period ending on 31 December
2004 such costs shall not exceed an aggregate amount of $27,000,000;


 


(b)                                 for the Testing Period ending on 31 December
2005 such costs shall not exceed an aggregate amount of $36,000,000; and


 


(c)                                  for the Testing Period ending on 31 December
2006 such costs shall not exceed an aggregate amount of $18,000,000.


 


“Total Net Debt” means, as at any particular
time, Senior Net Debt at that time plus the aggregate outstanding principal,
capital or nominal amount (other than fixed or minimum premium payable on
prepayment or redemption) under:


 


(a)                                  the Bridge Facility (but not, for the avoidance of doubt,
under the Bridge Subordinated Preference Certificates and the Bridge
Subordinated Preference Certificates Instrument); and


 


(b)                                 the High Yield Notes (or any other refinancing of the
Bridge Facility),


 


at that time but, for the avoidance of doubt, shall not include any Financial
Indebtedness under the Senior Discount Notes and the Senior Discount Notes
On-Loan.


 


“Total Net Interest Payable” means, in
relation to any Testing Period, the aggregate amount of interest (other than
capitalised or accreted interest) and any other finance charges payable in cash
by the Group in that Testing Period in respect of Total Borrowings and Senior
Discount Notes Borrowings including commitment fees, commissions and guarantee
fees and agency fees (except any which are payable prior to the Completion
Date) but adjusted by:


 


(i)                                     deducting the net
amount of interest receivable in cash by any member of the Group in that
Testing Period on credit balances or under interest or (insofar as they relate
to interest) currency hedging arrangements;


 


(ii)                                  excluding
any arrangement or underwriting fees in respect of the Facilities, the Bridge
Facility, the High Yield Notes (or any other refinancing of the Bridge
Facility) and the Senior Discount Notes.


 


“Working Capital” means, at any time, the
current assets of the Group being realisable within 1 year (other than
Cash and Cash Equivalent Investments) less current liabilities due within 1
year (other than Financial Indebtedness) but excluding any payables relating to
Capital Expenditure recorded as accruals in the Group balance sheet.


 


119





















 


For
this purpose, any amount outstanding or repayable in a currency other than
sterling shall on that day be taken into account:


 


(a)                                  if an
audited consolidated balance sheet of the Group has been prepared as at that
day, in their sterling equivalent at the rate of exchange used for the purpose
of preparing that balance sheet; and


 


(b)                                 in any other case, in their sterling equivalent at the
rate of exchange that would have been used had an audited consolidated balance
sheet of the Group been prepared as at that day in accordance with the
Applicable Accounting Principles.


 


25.           GENERAL UNDERTAKINGS


 


The
undertakings in this Clause 25 remain in force from the date of this Agreement
for so long as any amount is outstanding under the Senior Finance Documents or
any Commitment is in force.


 


Authorisations and Compliance with
Laws


 


25.1                           Authorisations


 


(a)                                  Each
Obligor shall (and the Company shall ensure that each other member of the Group
which is a party to a Transaction Document will) promptly obtain, comply with
and do all that is necessary to maintain in full force and effect any
Authorisation required:


 


(i)                                     to enable it
to perform its obligations under the Transaction Documents;


 


(ii)                                  to ensure the legality, validity or, subject to the
Reservations, enforceability or admissibility in evidence of, any Transaction
Document; and


 


(iii)                               to enable it to carry on its business if failure to
obtain, comply with or maintain any such Authorisation would reasonably be
expected to have a Material Adverse Effect.


 


(b)                                 The
Company shall ensure that the Perfection Requirements are promptly complied
with as soon as reasonably practicable and in any event:


 


(i)                                     in relation to
Obligors which are incorporated in England and Wales, within 21 days of
the date on which the relevant Security is granted or, if sooner, before the
final date on which any such Perfection Requirement needs to be fulfilled in
order to achieve the relevant perfection, protection or priority; and


 


(ii)                                  in
relation to Obligors which are incorporated in any other jurisdiction or assets
over which Security must be perfected in any other jurisdiction, before the
final date on which any such Perfection Requirement needs to be fulfilled in
order to achieve the relevant perfection, protection or priority.


 


25.2         Compliance
with laws


 


Each
Obligor shall (and the Company shall ensure that each other member of the Group
will) comply in all respects with all laws to which it may be subject
(including the Outer Space Act 1986, the Wireless Telegraphy Act 1949 and the
Communications Act 2003 (and any equivalent or analogous laws in any relevant
jurisdiction)), if failure so to comply would reasonably be expected to have a
Material Adverse Effect.


 


120





















 


25.3         Environmental
undertakings


 


Each
Obligor shall (and the Company shall ensure that each other member of the Group
will):


 


(a)                                  comply with all Environmental Laws to which it may be
subject;


 


(b)                                 obtain all Environmental Licences required in connection
with its business; and


 


(c)                                  comply with the terms of all those Environmental Licences,


 


in each case
where failure to do so would reasonably be expected to have a Material Adverse
Effect.


 


25.4                           Taxes


 


(a)                                  Each
Obligor shall (and shall ensure that each of the other Material Subsidiaries
will) pay all material Taxes required to be paid by it when due or within any
applicable grace period (or, if earlier, before any material penalty is or
could be imposed, and before any Security is or could be imposed ranking in
priority to the claims of any Senior Finance Party or to any Security created
pursuant to the Security Documents other than any Permitted Security).


 


(b)                                 Paragraph
(a) above does not apply to any Taxes:


 


(i)                                     being contested
by the relevant member of the Group in good faith and in accordance with the
relevant procedures;


 


(ii)                                  which have been adequately disclosed in its financial
statements, and for which adequate reserves are being maintained in accordance
with GAAP; and


 


(iii)                               where payment can be lawfully withheld and will not result
in the imposition of any material penalty or Security as described in paragraph
(a) above.


 


25.5         Financial
assistance


 


(a)                                  The Company shall
ensure that all payments between members of the Group, and any Security created
pursuant to any Finance Document by any member of the Group, are made or
created in compliance with any applicable law or regulation in any relevant
jurisdiction concerning financial assistance by a company for the acquisition
of or subscription for shares or concerning the protection of shareholders’
capital.


 


(b)                                 The
Company shall ensure that the procedures set out in sections 155 to 158 of the
Companies Act 1985 required to be implemented to permit each member of the
Acquired Group to comply with its obligations under Clause 25.23 (Security and guarantees) and the Whitewash
Intra-Group Loan Agreement to which it is a party are so implemented and shall
deliver to the Agent evidence that those procedures have been completed,
including:


 


(i)                                     copies of the
relevant directors’ statutory declarations and auditors’ reports;


 


(ii)                                  a certified copy of the relevant up-to-date register of
directors;


 


(iii)                               a letter
from the auditors addressed to the Senior Finance Parties certifying that
section 155(2) of the Companies Act 1985 has been complied with
substantially in the form set out in Technical Release FRAG 26/94 issued in
September 1994 by the Council of the Institute of Chartered Accounts in England
and Wales;


 


(iv)                              confirmation that the relevant directors’ statutory
declarations have been filed at Companies House; and


 


121





















 


(v)                                 if the Additional Obligor is a public limited company, a
certificate of re-registration as a private limited company from the Registrar
at Companies House.


 


25.6         Acquisitions
and investments


 


(a)                                  No Obligor
shall (and the Company shall ensure that no other member of the Group will):


 


(i)                                     invest in
or acquire any share in or any security issued by any person, or any interest
therein or in the capital of any person, or make any capital contribution to
any person; or


 


(ii)                                  invest in or acquire any business or going concern, or the whole
or substantially the whole of the assets or business of any person, or any
assets that constitute a division or operating unit of the business of any
person.


 


(b)                                 Paragraph
(a) above does not apply to any acquisition or investment which is a Permitted
Acquisition.


 


25.7         Joint
Ventures


 


(a)                                  No Obligor
shall (and the Company shall ensure that no member of the Group will) acquire
or agree to acquire any shares, stock, securities or other interest in any
Joint Venture or transfer any assets or lend or give a guarantee or indemnity
for or give Security or Quasi Security for the obligations of a Joint Venture
(or agree to transfer, lend, guarantee, indemnify or give Security or Quasi
Security for the obligations of a Joint Venture).


 


(b)                                 Paragraph
(a) does not apply to a Permitted Joint Venture.


 


25.8         Change
of business


 


The
Company shall ensure that no material change is made to the general nature of
the business of the Company or the Group or the Obligors taken as a whole from
that carried on by the Acquired Group at the date of this Agreement.


 


25.9         Merger


 


(a)                                  No Obligor
shall (and the Company shall ensure that no other member of the Group will)
enter into any amalgamation, demerger, merger, consolidation or corporate
reconstruction.


 


(b)                                 Paragraph
(a) above does not apply to any amalgamation, demerger, merger, consolidation
or corporate reconstruction which is a Permitted Merger.


 


25.10       Holding
company


 


The
Company shall not carry on any business, own any asset other than Cash or Cash
Equivalent Investments or incur any liability other than:


 


(a)                                  holding shares in any member of the Group;


 


(b)                                 making
loans to, or receiving loans from, another member of the Group, pursuant to the
Intercompany Loan Agreements, the High Yield Inter-Company Loan Agreement, the Working
Capital Support Letter or the Whitewash Intra-Group Loan Agreement, for the
purpose of the Acquisition and/or as provided for in the Funds Flow Memorandum
or to fund its working capital requirements or its obligations under the
Finance Documents;


 


(c)                                  providing administrative services to other members of the Group
and employing employees whose services are required for the operation of the
Group;


 


122





















 


(d)                                 liabilities, including Acquisition Costs, incurred and
Security created under the Transaction Documents; or


 


(e)                                  as a consequence of or in connection with a Permitted
Payment.


 


25.11       Dormant
Companies


 


The
Company shall ensure that as from the Completion Date:


 


(a)                                  no member of the Group shall, while it is a Dormant
Company:


 


(i)                                     carry on any business or incur any liability; or


 


(ii)                                  demand or accept payment of any indebtedness owing to it by
any Obligor; and


 


(b)                                 no Obligor shall pay any indebtedness owing to any
Dormant Company.


 


Restrictions on dealing with assets
and security


 


25.12       Arm’s
length terms


 


(a)                                  No Obligor
shall (and the Company shall ensure that no other member of the Group will)
enter into any contract or arrangement with or for the benefit of any other
person which is not an Obligor (including any disposal to that person) other
than in the ordinary course of business and on arm’s length, or better than
arm’s length, terms.


 


(b)                                 Paragraph
(a) above does not apply to a Permitted Transaction.


 


25.13       Assets


 


Each
Obligor shall (and the Company shall ensure that each other member of the Group
will) maintain all its material assets necessary for the conduct of its
business as conducted from time to time in good working order and condition,
ordinary wear and tear excepted.


 


25.14       Pari passu


 


Each
Obligor shall ensure that its obligations under the Senior Finance Documents
rank at all times at least pari passu
in right of priority and payment with the claims of all its other unsecured and
unsubordinated creditors, except for obligations mandatorily preferred by law
applying to companies generally and except as expressly provided for in the
Intercreditor Agreement.


 


25.15       Negative
pledge


 


(a)                                  No Obligor
shall (and the Company shall ensure that no other member of the Group will)
create or permit to subsist any Security or Quasi
Security over any of its assets.


 


(b)                                 Paragraph
(a) above does not apply to any Security or Quasi Security which is a Permitted
Security.


 


25.16       Disposals


 


(a)                                  No Obligor
shall (and the Company shall ensure that no other member of the Group will)
enter into a single transaction or a series of transactions (whether related or
not and whether voluntary or involuntary) to sell, lease, transfer or otherwise
dispose of any asset.


 


(b)                                 Paragraph
(a) above does not apply to any sale, lease, transfer or other disposal which
is a Permitted Disposal.


 


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Restrictions on movement of cash


 


25.17       Loans
or Credit


 


(a)                                  No Obligor
shall (and the Company shall ensure that no other member of the Group will) be
a creditor in respect of Financial Indebtedness.


 


(b)                                 Paragraph
(a) above does not apply to Permitted Loans.


 


25.18       Guarantees


 


(a)                                  No Obligor
shall (and the Company shall ensure that no other member of the Group will)
issue any guarantee, indemnity, bond or letter of credit to or for the benefit
of, or in respect of liabilities or obligations of, any other person or
voluntarily assume any liability (whether actual or contingent) of any other
person.


 


(b)                                 Paragraph
(a) above does not apply to Permitted Guarantees.


 


25.19       Restricted
payments


 


(a)                                  No Obligor
shall (and the Company shall ensure that no other member of the Group will):


 


(i)                                     pay, repay or
prepay any principal, interest or other amount on or in respect of, or redeem,
purchase or defease, any Investor Debt;


 


(ii)                                  pay, repay
or prepay any principal, interest or other amount on or in respect of, or
redeem, purchase or defease, any Financial Indebtedness owing to any Restricted
Person;


 


(iii)                               make any investment in, or pay any fee or make any advance
or other kind of payment to, any Restricted Person;


 


(iv)                              pay any fee or commission to any Restricted Person; or


 


(v)                                 pay, repay or prepay
any principal, interest or other amount on or in respect of, or redeem,
purchase or defease any Bridge Facility Outstandings or High Yield Notes
Outstandings other than as permitted under the Intercreditor Agreement.


 


(b)                                 The
Company shall not:


 


(i)                                     declare, pay or
make any dividend or other payment or distribution of any kind on or in respect
of any of its shares; and


 


(ii)                                  reduce, return, purchase, repay, cancel or redeem any of its
shares.


 


(c)                                  Paragraphs
(a) and (b) above do not apply to a payment which is a Permitted Payment.


 


25.20       Financial
Indebtedness


 


(a)                                  No Obligor
shall (and the Company shall ensure that no other member of the Group will)
incur (or agree to incur) or have outstanding any Financial Indebtedness.


 


(b)                                 Paragraph
(a) above does not apply to Financial Indebtedness that is Permitted Financial
Indebtedness.


 


(c)                                  The
Company shall ensure that, on the date of first Utilisation under this
Agreement, all Existing Debt (including any undrawn facilities) except for
Permitted Financial Indebtedness is prepaid, repaid or cancelled in full
(except to the extent that to do so would contravene any applicable law or
regulation in any relevant jurisdiction concerning financial assistance by a
company for the


 


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acquisition of or subscription for shares or concerning
the protection of shareholders’ capital) and any Security in relation to it is
released.


 


25.21       Bank
accounts


 


(a)                                  No Obligor
shall (and the Company shall ensure that no other member of the Group will)
open or maintain any account with any bank or other financial institution other
than the Security Trustee or a Lender.


 


(b)                                 Each
Obligor shall (and the Company shall ensure that each other member of the Group
will) pay all sums received by it into a bank account permitted by paragraph
(a) above.


 


(c)                                  Notwithstanding
paragraph (a) above, members of the Acquired Group shall be permitted to
maintain accounts held by them with Bank of America (the “BoA Accounts”) until the Syndication Date
whether or not Bank of America is a Lender, provided that if Bank of America is
not (or does not become) a Lender on the Syndication Date then:


 


(i)                                     the
Company shall use its reasonable endeavours to procure that, within 14 days of
the Syndication Date, all payment instructions for payments made to the
Acquired Group by France Telecom, Telenor, Stratos Global and Xantic BV (or any
of their Affiliates) under or in respect of the land earth station operator
agreement referred to in the definition of “LESO” and any replacement (or
replacements) or extension thereof which provide for such payments to be made
to the BoA Accounts are amended with those counterparties so as to ensure that
all such payments are thereafter made into accounts of the Group maintained
with the Security Trustee or Lenders and, to the extent that the Company cannot
procure the same in the period of 14 days from the Syndication Date, then the
Company shall continue to use its reasonable endeavours to procure the same
after the end of that period;


 


(ii)                                  the
Company shall use its reasonable endeavours to procure that, within 6 months of
the Syndication Date, all payment instructions for payments made to the
Acquired Group (other than those for France Telecom, Telenor, Stratos Global
and Xantic BV (or any of their Affiliates) under or in respect of the land
earth station operator agreement referred to in the definition of “LESO” and
any replacement (or replacements) or extension thereof) which provide for
payments to be made to the BoA Accounts are amended with the relevant
contractual counterparties so as to ensure that all such payments are
thereafter made into accounts of the Group maintained with the Security Trustee
or Lenders and, to the extent that the Company cannot procure such amendment in
the period of 6 months from the Syndication Date, then the Company shall
continue to use its reasonable endeavours to procure the same after the end of
that period;


 


(iii)                               the
Company shall procure that, promptly after execution of Debenture 2 by any
Acquired Group Members under Clause 25.23 (Security
and guarantees), notice of charge under Debenture 2 is provided to
Bank of America in respect of each BoA Account and the Company shall use all
reasonable endeavours to procure that Bank of America acknowledge such
notice(s) of charge; and


 


(iv)                              subject to paragraph (d) below, the Company shall procure
that, at least once each week, all credit balances in the BoA Accounts are
transferred to accounts of the Group maintained with the Security Trustee or
Lenders and that all credit balances on such


 


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accounts are immediately transferred to accounts of the
Group maintained with the Security Trustee or Lenders if a Default occurs.


 


(d)                                 Notwithstanding
paragraph (a) above, the Group shall be entitled to maintain bank accounts with
banks and financial institutions other than the Security Trustee and the
Lenders where the aggregate credit balances on such accounts (including, for
the avoidance of doubt, any BoA Accounts) do not exceed, at any time,
$5,000,000 (or its equivalent in another currency or currencies) provided that:


 


(i)                                     any credit
balances in excess of an aggregate of $5,000,000 (or its equivalent in another
currency or currencies) on such accounts are promptly transferred to accounts
of the Group maintained with the Security Trustee or Lenders; and


 


(ii)                                  all credit balances on such accounts are promptly
transferred to accounts of the Group maintained with the Security Trustee or
Lenders if a Default occurs.


 


25.22       Issue
of shares


 


(a)                                  No Obligor
shall (and the Company shall ensure that no other member of the Group will):


 


(i)                                     issue any
share; or


 


(ii)                                  grant to
any person any conditional or unconditional option, warrant or other right to
call for the issue or allotment of, subscribe for, purchase or otherwise
acquire any share capital of any member of the Group (including any right of
pre-emption, conversion or exchange), or alter any right attaching to any share
capital of any member of the Group.


 


(b)                                 Paragraph
(a) above does not apply to a Permitted Share Issue.


 


Security and hedging


 


25.23       Security
and guarantees


 


(a)                                  The
Company shall ensure that as soon as practicable after the Completion Date and
in any event within 15 days of the Completion Date, each Acquired Group Member
shall become an Additional Guarantor in accordance with Clause 28 (Changes to the Obligors) and shall execute
and deliver a Debenture 2 and the documents and other evidence listed in
Part Ill of Schedule 2 (Conditions precedent
required to be delivered by an Additional Obligor), other than
paragraph 2.


 


(b)                                 If:


 


(i)                                     any new member of the Group is incorporated which is a
Borrower or a Material Subsidiary; or


 


(ii)                                  any member of the Group becomes a Material Subsidiary,


 


then
the Company shall promptly notify the Agent and shall ensure that the relevant
member of the Group will, within 14 days of such notice, become an Additional
Guarantor under Clause 28.3 (Additional
Guarantors) (unless (A) it is not legally permissible for such
member of the Group to become an Additional Guarantor under applicable law or
(B) the Majority Banks agree that such relevant member of the Group need not
become an Additional Guarantor because such relevant member of the Group
becoming an Additional Guarantor would result in a material Tax liability for
the Group) and shall execute and deliver a Debenture 2 or, if that member
of the Group is incorporated other than in England and Wales, other Security
(to the extent available)


 


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which
provides the Senior Finance Parties with substantially the same Security over
that member of the Group as a Debenture 2 would provide if that member of the
Group were incorporated in England and Wales provided that such Security need
not be given to the extent that the Majority Lenders are satisfied (acting
reasonably) that:


 


(a)                                  taking such Security would incur excessive expense for the
Group relative to the value to the Senior Finance Parties of such Security;


 


(b)                                 taking such Security would result in a material Tax
liability for the Group;


 


(c)                                  the value of such Security would be immaterial to the
Senior Finance Parties in the context of the other Security provided to them at
that time; and/or


 


(d)                                 giving such Security would not be legally permissible,


 


and the documents and other evidence listed in Part Ill
of Schedule 2 (Conditions precedent required
to be delivered by an Additional Obligor), other than paragraph 2.


 


(c)                                  Each
Obligor shall (and the Company shall ensure that each other member of the Group
will), at its own expense, promptly take all such action as the Agent or the
Security Trustee may reasonably require:


 


(i)                                     for the purpose of
creating, perfecting and protecting the Finance Parties’ rights under, and
preserving the Security intended to be created or evidenced by, any of the
Finance Documents; and


 


(ii)                                  for the purpose of facilitating the realisation of any of
that Security,


 


including the execution of any transfer, conveyance,
assignment or assurance of any asset and the giving of any notice, order or
direction and the making of any registration which the Agent or the Security
Trustee may reasonably require.


 


(d)                                 The
Company shall ensure that within 15 days of the Completion Date:


 


(i)                                     the aggregate
of the unconsolidated turnover of the Guarantors (without double counting and
excluding any interests in any Subsidiaries which are Guarantors) exceeds 90
per cent. of the consolidated turnover of the Group;
and


 


(ii)                                  the aggregate of the unconsolidated Subsidiary EBITDA of
the Guarantors (without double counting and excluding any dividends or other
distributions from Subsidiaries which are Guarantors) exceeds 90 per cent. of the consolidated EBITDA of the Group,


 


in each case calculated by reference to the then most
recent audited consolidated financial statements of each Guarantor.


 


25.24       Hedging


 


(a)                                  The
Company shall ensure that the Hedging Documents implementing the Hedging Policy
are entered into within 30 days of the date of the first Utilisation of the
Facilities.


 


(b)                                 At or
before the time that any member of the Group enters into any Hedging Document
with a Hedging Bank, the Company shall ensure that the counterparty accedes as
a Hedging Bank to the lntercreditor Agreement.


 


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(c)                                  No Obligor
shall (and the Company shall ensure that no other member of the Group will)
enter (or agree to enter) into any swap, cap, floor, collar, option, futures
transaction, forward rate agreement, foreign exchange transaction or other
treasury transaction or any similar instrument or any combination of the
foregoing other than a Permitted Hedging Transaction.


 


25.25       Insurance


 


(a)                                  Each
Obligor shall (and the Company shall ensure that each other Material Subsidiary
will), after the Completion Date, maintain insurances on and in relation to its
business and insurable assets with reputable underwriters or insurance
companies as follows:


 


(i)                                     against those
risks, and to the extent, usually insured against by prudent companies located
in the same or a similar location and carrying on a similar business; and


 


(ii)                                  against those risks, and to the extent, required by
applicable law or by contract.


 


The
insurances in paragraphs (i) and (ii) above shall cover those risks recommended
to be covered in, and at commercially prudent levels no lower than those
recommended in, the Insurance Report provided that it shall not be required to
implement any such recommendations to the extent that it has considered each of
them in good faith and has concluded (acting reasonably) that there are sound
commercial reasons for not implementing those recommendations.


 


(b)                                 Paragraph
(a) (i) and (ii) above will be satisfied in relation to the I2 Satellites, the
I3 Satellites and the I4 Satellites if each Obligor and its Subsidiaries
maintain (subject to customary exclusions in the market for Satellite
insurance):


 


(i)                                     in-orbit
insurance for all I3 Satellites on a net book value basis (or such lesser cover
as can be obtained for an annual premium of $3,000,000) provided that:


 


(A)                              the requirement for such in-orbit insurance for the fleet
of I3 Satellites will be satisfied on any date of determination if:


 


(AA)       each Obligor and its
Subsidiaries have in orbit at such date of determination at least five I3
Satellites (none of which functions in a manner that would constitute a “total
loss” or has given rise to the receipt of insurance proceeds for a “total
loss”, in either case, under the in-orbit insurance cover of the Obligors and
their Subsidiaries); and


 


(BB)        at such date of
determination all I3 Satellites are insured on a net book value basis but
payment under such insurance is excluded for the first loss of an I3 Satellite;
and


 


(B)                                no such
in-orbit insurance for the I3 Satellites will be required after the date on
which at least one I4 Satellite has been accepted in-orbit and the insurance
referred to in sub-paragraphs (ii) and, when required, (iii) below is in place;


 


(ii)                                  from 30
days prior to the first launch of an I4 Satellite, launch insurance in respect
of three I4 Satellites providing for: (A) partial cover of not less than
US$100,000,000 for the first loss; (B) net book value cover for all subsequent
losses; and (C) coverage for each I4 Satellite through at least six months
following launch; and


 


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(iii)                               from and
after three days prior to the expiration of the initial launch coverage
referred to in sub-paragraph (ii) above, in-orbit insurance cover in respect of
each such Satellite at net book value at all times,


 


provided
that, for so long as two I4 Satellites have been accepted in orbit and a third
I4 Satellite has been constructed and is being stored as a ground spare, the
coverage required by sub-paragraph (iii) above will be satisfied if each
Obligor and its Subsidiaries maintain from and after three days prior to the
expiration of the initial launch coverage referred to in sub-paragraph (ii)
above: (A) (x) partial in-orbit insurance cover in respect of the first loss of
an I4 Satellite in an amount sufficient to cover the cost of purchasing a new
launch service for the ground spare and the cost of the insurance cover referred
to in sub-paragraph (ii)(B) above (which shall not be less than $120,000,000);
and (y) business interruption insurance covering the period between the first
loss of an I4 Satellite and acceptance in orbit of the ground spare; and (B)
net book value insurance cover for all other I4 Satellite losses.


 


For
the purposes of sub-paragraphs (i) and (iii) of paragraph (b) above, “net book
value” shall be the average of the book values of the relevant satellite as of
the first and last days of the period covered by the relevant insurance, in
each case, determined in accordance with Applicable Accounting Principles;
provided that the relevant period covered by the relevant insurance is one year
or less.


 


For
the purposes of determining the amount of insurance required to satisfy the
requirements of sub-paragraph (A)(x) in the next preceding paragraph, Newco
shall obtain an insurance report from its insurance broker setting out such
broker’s recommendations regarding such insurance cover and levels at the time
it is seeking to implement such insurance and annually thereafter.


 


(c)                                  Each
Obligor shall (and the Company shall ensure that each other member of the Group
will) promptly pay premiums and do all things necessary to maintain insurances
required of it by paragraphs (a) above.


 


(d)                                 Each
Obligor shall (and the Company shall ensure that each other member of the Group
will):


 


(i)                                     promptly supply to
the Agent on request copies of each Group insurance policy required by this
Clause 25.25; and


 


(ii)                                  use
reasonable endeavours to procure that the insurer under each such policy
undertakes to the Security Trustee to notify the Security Trustee should any
renewal, premium or other sum payable by any member of the Group not be paid
when due and, if requested, confirm that such policies are in place.


 


(e)                                  Each
Obligor shall (and the Company shall ensure that each other member of the Group
will) procure that each insurance policy required by this Clause 25.25 (except
for public liability, employer’s liability, third party liability or
professional indemnity insurance policies) notes the Security Trustee’s
interest in that policy.


 


(f)                                    No Obligor
shall (and the Company shall ensure that no other member of the Group will) do
or omit to do anything which might render any insurance required by this
Clause 25.25 void, voidable or unenforceable.


 


25.26       Intellectual
Property


 


Each
Obligor shall (and the Company shall ensure that each other member of the Group
will):


 


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(a)                                  take all
reasonable action to obtain, safeguard, maintain in full force and effect and
preserve its ability to enforce all Intellectual Property Rights necessary for
the conduct of its business as conducted from time to time, including:


 


(i)                                     paying all applicable renewal fees, licence fees and other
outgoings; and


 


(ii)                                  performing
and complying with all material laws and material obligations to which it is
subject as registered proprietor, beneficial owner, user, licensor or licensee
of any such Intellectual Property Rights;


 


(b)                                 promptly
notify the Agent of any material infringement or threatened or suspected
material infringement of or any challenge to the validity of any Intellectual
Property Rights owned by or licensed to it which may come to its notice and
supply the Agent (if requested) with all information in its possession relating
thereto;


 


(c)                                  take all necessary steps (including the institution of
legal proceedings) to prevent third parties infringing any such material
Intellectual Property Rights; and


 


(d)                                 take all necessary steps (including legal proceedings) to
enforce the confidentiality of and prevent any improper use of any trade secret
which is an Intellectual Property Right,


 


in the case of paragraphs (a), (c) and (d) above, where
failure to do so would reasonably be expected to have a Material Adverse
Effect.


 


25.27       Pension
schemes


 


The
Company shall ensure that all pension schemes maintained by or for the benefit
of any member of the Group and/or any of its employees:


 


(a)                                  are
maintained and operated in all material respects in accordance with all
applicable laws and contracts and their governing provisions; and


 


(b)                                 are funded substantially in accordance with the governing
provisions of the scheme with any funding shortfall advised by actuaries of
recognised standing being rectified in accordance with those governing
provisions.


 


Acquisition related undertakings


 


25.28       Scheme
of Arrangement


 


The
Company shall (and shall procure that Newco shall):


 


(a)                                  ensure that the Offer Circular contains all of the material
terms and material conditions of the Acquisition and corresponds to the Press
Release in all material respects;


 


(b)                                 ensure that the Press Release is not issued in any form
other than the Agreed Form;


 


(c)                                  comply with the Code, the Financial Services and Markets Act
2000, the Companies Act 1985, all other applicable laws material to the Scheme
of Arrangement and all court orders relating to the Scheme of Arrangement;


 


(d)                                 not without the consent of the Agent (acting on the
instructions of the Majority Lenders):


 


(i)                                     agree to amend, waive, revise, withdraw or agree to decide
not to enforce in whole or in part any material term or material condition of
the Scheme of


 


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Arrangement
where its agreement is required for such amendment, waiver, revision,
withdrawal or decision;


 


(ii)                                  agree to change the date of any meeting of shareholders or
class of shareholders of the Target to be held to consider the Scheme of
Arrangement where its agreement is required for such a change; or


 


(iii)                               issue (or
allow to be issued on its behalf) any press release or other publicity which
refers to the Facilities, the Mandated Lead Arrangers, the Original Lenders or
the Bookrunners unless such press release or publicity is required by law, the
Code or the Panel (in which event Newco shall if practicable consult with the
Agent as to the terms of such press release or publicity);


 


(e)                                  promptly
inform and consult with the Mandated Lead Arrangers as to any assurance or
undertaking proposed to be given in relation to obtaining any Authorisation
necessary in connection with the Scheme of Arrangement and shall ensure that no
such assurance or undertaking is given if the Mandated Lead Arrangers believe
that the same might have a Material Adverse Effect; and


 


(f)                                    if a circumstance or event occurs which is or could
reasonably be construed to be covered by a condition of Newco’s offer for the
Target which, if not waived, would entitle Newco (with the Panel’s consent, if
needed) not to proceed with the Acquisition:


 


(i)                                     at the
request of the Lenders following consultation with the Company, promptly
request (and use all reasonable endeavours to persuade) the Panel to agree to
Newco not proceeding with the Acquisition as a result of the non-satisfaction
of that condition; and


 


(ii)                                  if the
Panel so agrees, not waive that condition or treat it as satisfied and shall
declare Newco’s offer for the Target as being lapsed at the earliest
opportunity.


 


25.29       Rule
9 bid


 


The
Company shall ensure that no action is taken by any person which:


 


(a)                                  would trigger a mandatory offer by Newco for the Target
under Rule 9 of the Code;


 


(b)                                 would
require the price to be paid to the shareholders of the Target under the Scheme
of Arrangement to be increased from that set out in the Press Release; or


 


(c)                                  would result in the Panel requiring Newco to do something
prohibited by (a) and (b) above.


 


25.30       Registration
as private limited company


 


The
Company shall ensure that within one Business Day of the Completion Date the
Target is re-registered as a private limited company.


 


25.31       Veto
Rights


 


Newco
shall, and the Company shall procure that Newco shall, (in each case subject to
any conflicting fiduciary duties of the directors thereof) during the period
from the date of this Agreement until the Completion Date, not direct any
member of the Target Group (so far as it is able), under clause 2.4.1 of clause
2 (Conditions) of the
Shareholders’ Agreement, to carry out 


 


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any of the acts specified in schedule 5 (Veto rights of investors) of the
Shareholders’ Agreement where the carrying out of any such act would reasonably
be expected to give rise to a Default.


 


Miscellaneous


 


25.32       Amendments
of Investor Documents, Bridge Facility Finance Documents and High Yield Notes
Finance Documents


 


Neither
the Company nor any relevant Obligor shall (and the Company shall ensure that
no other member of the Group shall) amend, vary, novate, supplement or
terminate any of the Investor Documents, any of the Bridge Facility Finance
Documents, any of the High Yield Notes Finance Documents or the Senior Discount
Notes Finance Documents (once entered into) other than:


 


(a)                                  any amendment, variation, novation or supplement which is
of a minor or technical nature;


 


(b)                                 any amendment, variation, novation or supplement thereto
which is not expressly prohibited under the terms of the lntercreditor
Agreement;


 


(c)                                  the termination of the Bridge Facility Finance Documents
in circumstances where the Bridge Facility Outstandings have been fully repaid
as permitted under the Intercreditor Agreement;


 


(d)                                 as expressly permitted or required pursuant to the
Intercreditor Agreement or this Agreement; or


 


(e)                                  any amendment, variation, novation or supplement deemed
to have occurred by virtue of the redemption of Subordinated Preference
Certificates under the permitted payment referred to in paragraph (l) of the
definition of “Permitted Payment”.


 


25.33       Publicity


 


No
Obligor shall (and the Company shall ensure that no other member of the Group
will) issue or allow to be issued on its behalf any press release or other
publicity which refers to any Facility or any Senior Finance Party unless the
publicity is required by law, the Code, the Panel or any stock exchange. In
that case the Company shall notify the Agent as soon as practicable upon
becoming aware of the requirement, shall consult with the Agent on the terms of
the reference and shall have regard to any timely comments of the Agent.


 


25.34       Anti-money
laundering


 


No
Obligor will, and each Obligor will procure that none of its Subsidiaries will,
fund all or part of any payment under a Senior Finance Document out of proceeds
derived from any unlawful activity which would result in any violation of any
applicable anti-money laundering law or regulation.


 


25.35       Employment
Contracts


 


The
company shall deliver to the Agent, as soon as practicable after the same
become available, a copy of each additional employment contract of each of the
Chief Executive Officer and the Chief Financial Officer.


 


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25.36       Material
Contracts


 


Each
member of the Group shall comply with the terms of the Material Contracts and
do all that is necessary to maintain all Material Contracts in full force and
effect save to the extent that any such non-compliance or failure to maintain a
Material Contract in full force and effect would not be reasonably be expected
to have a Material Adverse Effect.


 


25.37       Overfunding


 


(a)                                  On the
date of the first Utilisation of the Facilities, the Company shall ensure that
an amount equal to the Overfunding less the Overfund Deduction is deposited in
Cash into the Overfunding Account, which shall be charged in favour of the
Security Trustee, for and on behalf of the Senior Finance Parties, on terms
satisfactory to it (acting reasonably) provided that:


 


(i)                                     the amount of the Overfund Deduction must be applied in
payment of consideration to shareholders of the Target for the Acquisition; and


 


(ii)                                  an amount equal to the Overfund Deduction must be paid
into the Overfunding Account within 15 days of the Completion Date.


 


(b)                                 The
Company may withdraw funds from the Overfunding Account if:


 


(i)                                     the aggregate balance of the Overfunding Account after
such withdrawal is in excess of two-thirds of the amount of the Overfunding;


 


(ii)                                  such withdrawal is solely for the purpose of funding money
market cash deposits for the purposes of the Group’s treasury management (and
not for speculative purposes) and in accordance with paragraph (c) below; or


 


(iii)                               the Company has certified to the Agent and the Security
Trustee that such amounts will be applied to fund Capital Expenditure in
relation to the I4 Programme.


 


(c)                                  Newco
shall procure that the following conditions are complied with in funding any
money market cash deposits from the Overfunding Account under sub-paragraph
(ii) of paragraph (b) above:


 


(i)                                     such deposits may only be made with banks or financial
institutions which are Lenders and shall not be made with more than four such
banks or financial institutions at any one time;


 


(ii)                                  any Lender
with whom such deposits are made shall, at the time such deposits are made,
have outstanding debt securities rated at least A-1 by Standard & Poor’s
Ratings Group or P-1 by Moody’s Investors Service, Inc;


 


(iii)                               such deposits shall have a maturity of six months or less;


 


(iv)                              such deposits shall only be made in dollars and euros;


 


(v)                                 such deposits shall only be made in London;


 


(vi)                              all
payments made by the banks or financial institutions with whom such deposits
are made shall be made to the Overfunding Account and the settlement
instructions for such deposits shall specify this; and


 


(vii)                           Newco
shall promptly execute any notices of charge in relation to such deposits
required by the Security Trustee and shall use all reasonable endeavours to
ensure that the


 


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banks or financial institutions with whom such
deposits are made acknowledge such notices of charge.


 


(d)                                 Newco
shall, with each set of financial statements provided under Clause 23.2 (Monthly financial statements), provide a
statement:


 


(i)                                     of the balance on the Overfunding Account as at the end
of the Accounting Month to which such financial statements relate;


 


(ii)                                  detailing all credits to, and withdrawals from, the Overfunding
Account during the Accounting Month to which such financial statements relate;
and


 


(iii)                               detailing all money market cash deposits outstanding at the end
of that Accounting Month (including details of the amount and maturity of such
deposits and the names of the banks or financial institutions with whom such
deposits have been made).


 


25.38                     I4 Launch Insurance


 


The
Company shall procure that where a new member of the Acquired Group is
incorporated in the Isle of Man (“IoMCo”)
for the purposes set out in the memorandum to the board of directors of the
Target dated 31 October 2003 entitled “Inmarsat Launch Company Limited” (and a
copy of which has been provided to the Lenders) then:


 


(a)                                  the
contract (or contracts) of insurance for the launch insurance cover in respect
of the I4 Satellites taken out, or to be taken out, by IoMCo;


 


(b)                                 the contract (or contracts) made, or to be made, by any
member of the Group and IoMCo in relation to the launch of the I4 Satellites;
and


 


(c)                                  all Permitted Loans made, or to be made, by any member of
the Group to IoMCo,


 


shall,
in each case, be governed by English law, be subject to the jurisdiction of the
courts of England and be charged and/or assigned to the Security Trustee
pursuant to Debenture 2.


 


26.           EVENTS OF DEFAULT


 


Each
of the events or circumstances set out in this Clause 26 is an Event of
Default.


 


26.1                           Non-payment


 


An
Obligor does not pay on the due date any amount payable pursuant to a Senior
Finance Document at the place at and in the currency in which it is expressed
to be payable unless:


 


(a)                                  its failure to pay is caused by administrative or
technical error; and


 


(b)                                 payment is made within 3 Business Days of its due date.


 


26.2                           Financial covenants


 


Any
requirement of Clause 24 (Financial
covenants) is not satisfied.


 


26.3                           Other obligations


 


(a)                                  Any person
(other than a Finance Party) does not comply with Clause 25.6 (Acquisitions and investments), Clause 25.7
(Joint Ventures), Clause 25.9 (Merger), paragraph (b) of Clause 25.10 (Holding
Company), Clause 25.15 (Negative
pledge), Clause 25.17 (Loans or
Credit) (other than in relation to any loan to a member of the
Group), Clause 25.19 (Restricted payments),
Clause


 


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25.20 (Financial Indebtedness),
Clause 25.22 (Issue of shares),
paragraph (a) of Clause 25.23 (Security and
guarantees), Clause 25.28 (Scheme
of Arrangement), Clause 25.30 (Re-registration
as private limited company) or Clause 25.31 (Veto Rights).


 


(b)                                 Any
Obligor does not comply with any provision of the Senior Finance Documents
other than those referred to in Clause 26.1 (Non-payment),
Clause 26.2 (Financial covenants)
or in paragraph (a) above unless such failure to comply is capable of remedy
and is remedied within 15 Business Days of the earlier of the Agent giving
notice to the Company or the Company becoming aware of the failure to comply.


 


26.4                           Misrepresentation


 


Any
representation or written statement made or deemed to be made by an Obligor in
the Senior Finance Documents is or proves to have been incorrect or misleading
when made or deemed to be made by reference to the facts and circumstances then
existing unless the facts or circumstances underlying such misrepresentation
are capable of remedy and are remedied within 15 Business Days of the earlier
to occur of the date of the Agent giving notice to the Company or the Company
becoming aware of the misrepresentation.


 


26.5                           Cross default


 


(a)                                  Any
Financial Indebtedness of any member of the Group is not paid when due nor
within any originally applicable grace period.


 


(b)                                 Any
Financial Indebtedness of any member of the Group is declared to be or
otherwise becomes due and payable prior to its specified maturity as a result
of an event of default (however described).


 


(c)                                  Any
creditor of any member of the Group becomes entitled to declare any Financial
Indebtedness of any member of the Group due and payable prior to its specified
maturity as a result of an event of default (however described).


 


(d)                                 No Event
of Default will occur under this Clause 26.5 if the aggregate amount of
Financial Indebtedness or commitment for Financial Indebtedness falling within
paragraphs (a) to (c) above is less than $3,000,000 (or its equivalent in
another currency or currencies).


 


26.6                           Insolvency


 


(a)                                  A Key
Company is unable or admits in writing its inability to pay its debts as they
fall due, suspends, or threatens to suspend, making payments on all or any
class of its debts or, by reason of actual financial difficulties, commences
negotiations with one or more classes of its creditors (other than the Finance
Parties or the Investors) with a view to rescheduling any of its indebtedness.


 


(b)                                 A
moratorium is declared in respect of any indebtedness of any Key Company.


 


26.7                           Insolvency proceedings


 


(a)                                  Any
corporate action, legal proceedings or other procedure or step is taken in
relation to:


 


(i)                                     the suspension of payments, a moratorium of any
indebtedness, winding-up, dissolution, administration or reorganisation (by way
of voluntary arrangement, scheme of arrangement or otherwise) of any Key
Company;


 


(ii)                                  a composition, assignment or arrangement with any
creditor of any Key Company;


 


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(iii)                               the appointment of a liquidator, receiver, administrator,
administrative receiver, compulsory manager or other similar officer in respect
of any Key Company or any of its assets; or


 


(iv)                              the enforcement of any Security over any assets of any
Key Company,


 


or any
analogous procedure or step is taken in any jurisdiction.


 


(b)                                 Paragraph
(a) shall not apply to:


 


(i)                                     any legal proceedings or other procedure which is part of
a solvent reorganisation permitted under this Agreement; or


 


(ii)                                  proceedings
for or presentation of a petition or application for winding-up, which are
frivolous or vexatious and where the proceedings are dismissed, stayed or
discharged within 21 days of commencement and in any event prior to the
advertisement of such proceedings.


 


26.8                           Creditors’ process


 


Any
expropriation, attachment, sequestration, distress or execution or any
analogous process in any jurisdiction affects any asset or assets of a Key
Company having an aggregate value of $1,000,000 or its equivalent in another
currency or currencies and is not discharged within 10 Business Days.


 


26.9                           Ownership


 


After
the Completion Date, any Key Company is not or ceases to be a wholly-owned
Subsidiary (as such term is defined in section 736 of the Companies Act 1985)
of the Company.


 


26.10                     Unlawfulness


 


It
is or becomes unlawful for any Obligor to perform any of its material
obligations under any Senior Finance Document to which it is a party.


 


26.11                     Repudiation


 


Any
person (other than a Finance Party) repudiates a Transaction Document or
evidences an intention to repudiate a Senior Finance Document.


 


26.12                     Security and guarantees


 


Any
Security Document or any guarantee or indemnity in, or any subordination under,
any Senior Finance Document is not in full force and effect or any Security
Document does not create in favour of the Security Trustee, for the benefit of
the Senior Finance Parties, the Security which it is expressed to create,
subject to any applicable Reservations, fully perfected in a manner and to an
extent reasonably considered by the Majority Lenders to be materially adverse to
the interests of the Lenders under the Senior Finance Documents.


 


26.13                     Breach of lntercreditor Agreement and other relevant agreements


 


Any
party (other than a Finance Party) fails to comply with its obligations under
the lntercreditor Agreement or the Investor Documents and the interests of the
Lenders under the Senior Finance Documents or any of them is reasonably likely
to be materially prejudiced by such failure.


 


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26.14                     Cessation of business


 


Any
Key Company suspends or ceases (or threatens to suspend or cease) to carry on
all or a material part of its business, other than where such suspension or
cessation arises as a result of a transfer of such business which is a
Permitted Disposal.


 


26.15                     Nationalisation


 


Any
step is taken by any person with a view to the seizure, compulsory acquisition,
expropriation or nationalisation of all or any of the shares, or all or any
material part of the assets of any Key Company.


 


26.16                     Audit qualification


 


The
auditors qualify their report on any audited consolidated financial statement
of the Group in a manner which, in the opinion of the Majority Lenders (acting
reasonably), is material in the context of the Senior Finance Documents.


 


26.17                     Litigation


 


Any
litigation, arbitration, proceeding or dispute is started or formally
threatened which is reasonably likely to be adversely determined and would
reasonably be expected to have a Material Adverse Effect.


 


26.18                     Bridge Facility Default or High Yield Notes Default


 


Any
event of default (howsoever described) occurs, which is continuing, under the
Bridge Facility Agreement or the High Yield Notes Indenture, as the case may
be.


 


26.19                     Number of satellites


 


The
Group ceases to have at least 3 I3 Satellites or I4 Satellites in orbit which
are capable of operating for the estimated life, and with the estimated
capacity, shown for those I3 Satellites or I4 Satellites (as appropriate) in
the Technical Report, provided that no Event of Default shall occur where such
cessation lasts for less than 24 hours.


 


26.20                     Material adverse change


 


A
Material Adverse Effect exists or has occurred.


 


26.21                     Acceleration


 


(a)                                  Subject to
Clause 4.6 (Certain Funds Period)
and Clause 26.22 (Clean-up Period),
on and at any time after the occurrence of an Event of Default (while it is
continuing) the Agent shall if so directed by the Majority Lenders, by notice
to the Company:


 


(i)                                     cancel the
Total Commitments whereupon they shall immediately be cancelled;


 


(ii)                                  declare
that all or part of the Utilisations, together with accrued interest, and all
other amounts accrued or outstanding under the Senior Finance Documents be
immediately due and payable, whereupon they shall become immediately due and
payable; and/or


 


(iii)                               declare that all or part of the Utilisations be payable on
demand, whereupon they shall immediately become payable on demand by the Agent
on the instructions of the Majority Lenders; and/or


 


(iv)                              declare
that full cash cover in respect of each or any Letter of Credit or Bank
Guarantee is immediately due and payable, whereupon it shall become immediately
due and payable; and/or


 


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(v)                                 declare
that full cash cover in respect of each or any Letter of Credit or Bank
Guarantee is payable on demand, whereupon it shall immediately become payable
on demand by the Agent on the instructions of the Majority Lenders.


 


(b)                                 Promptly
after being notified by the Agent of the Acceleration Date, each Ancillary
Lender shall by notice to the Company:


 


(i)                                     cancel its
Ancillary Commitment whereupon it shall immediately be cancelled;


 


(ii)                                  declare
that all, or the corresponding part, of the utilisations under any Ancillary
Facility provided by that Ancillary Lender, together with accrued interest,
full cash cover in respect of all, or the corresponding part, of the contingent
liabilities of that Lender under that Ancillary Facility, and all or the
corresponding part of all other amounts accrued or outstanding in respect of
that Ancillary Facility be immediately due and payable, whereupon they shall
become immediately due and payable; and/or


 


(iii)                               declare
that all, or the corresponding part, of the utilisations under any Ancillary
Facility provided by that Ancillary Lender, together with accrued interest,
full cash cover in respect of all, or the corresponding part, of the contingent
liabilities of that Lender under that Ancillary Facility, and all or the
corresponding part of all other amounts accrued or outstanding in respect of
that Ancillary Facility be payable upon demand, whereupon they shall
immediately become payable on demand by that Ancillary Lender (on the
instructions of the Agent, if so directed by the Majority Lenders).


 


(c)                                  Subject to
Clause 4.6 (Certain Funds Period)
and Clause 26.22 (Clean-up Period),
no Ancillary Lender may cancel the whole or any part of its Ancillary
Commitment, declare on demand that all or part of the utilisations under an
Ancillary Facility provided by that Ancillary Lender be immediately due and
payable or demand or require the payment of cash cover in respect of all or any
part of any contingent liabilities of that Lender under an Ancillary Facility
unless the Agent has delivered a notice to the Company pursuant to paragraph
(a)(ii) of this Clause 26.21.


 


26.22       Clean-up
Period


 


If,
during the Clean-up Period, any event or circumstance with respect to any
member of the Acquired Group occurs which would constitute a Default (the “Potential Event of Default”), then:


 


(a)                                  the Company promptly after becoming aware shall notify
the Agent of that fact in writing, giving a reasonable description of:


 


(i)                                     the Potential Event of Default and its causes; and


 


(ii)                                  the remedial action in relation to that Potential Event
of Default which the Company and/or the Acquired Companies propose to take; and


 


(b)                                 that
Potential Event of Default shall not constitute a Default, and the Agent shall
not with respect to that Potential Event of Default (but, for the avoidance of
doubt, not so as to restrict the Agent’s rights to take such action with
respect to any other Event of Default which is not a Potential Event of
Default) be entitled to take any of the actions set out in Clause 26.21 (Acceleration), until (assuming that the
Potential Event of Default is then continuing) the earlier of:


 


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(i)                                     immediately following the end of the Clean-up Period; and


 


(ii)                                  the date (if any) on which a Material Adverse Effect
occurs,


 


provided
that the foregoing shall not apply with respect to any Potential Event of
Default under Clause 26.7 (Insolvency
proceedings) to the extent such Potential Event of Default occurs in
relation to a Material Subsidiary which either (A) is not capable of remedy or
(B) is capable of remedy and is not remedied within 14 days of the Material Subsidiary
becoming aware of the occurrence of the Potential Event of Default, whether
from receipt of notification of such occurrence by the Agent or otherwise.


 


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SECTION 9


 


CHANGES TO PARTIES


 


27.                                 CHANGES TO THE LENDERS


 


27.1                           Assignments and transfers by the Lenders


 


Subject
to this Clause 27, a Lender (the “Existing
Lender”) may:


 


(a)                                  assign any of its rights; or


 


(b)                                 transfer by novation any of its rights 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 (the “New Lender”).


 


27.2                           Conditions of assignment or transfer


 


(a)                                  An
assignment or transfer by a Lender shall (unless an Event of Default is
continuing) be made following consultation with the Company (as Obligor’s
Agent) but, for the avoidance of doubt, the consent of the Obligors is not
required.


 


(b)                                 The
consent of the Bookrunners is required for an assignment or transfer
by a Lender at any time prior to the Syndication Date, save that no such
consent is required for an assignment or transfer by a Lender to any of its
Affiliates or a Related Fund.


 


(c)                                  An
assignment will only be effective on:


 


(i)                                     receipt by
the Agent of written confirmation from the New Lender (in form and substance
satisfactory to the Agent) that the New Lender will assume the same obligations
to the other Senior Finance Parties as it would have been under if it was an
Original Lender; and


 


(ii)                                  the
satisfaction of the Agent with the results of all “know your customer” or other
checks relating to the identity of any person that it is required to carry out
in relation to such assignment to a New Lender, which the Agent shall promptly
notify to the Lender and the New Lender.


 


(d)


 


(i)                                     A transfer
will only be effective if the procedure set out in Clause 27.5 (Procedure for transfer) is complied with.


 


(ii)                                  Any
assignment or transfer by an Existing Lender to a New Lender shall only be
effective if it transfers or assigns the Existing Lender’s:


 


(A)                              share of a
Facility pro rata against the Existing Lender’s Available Commitment and its
participations in Utilisations under that Facility; and


 


(B)                                share of a Facility pro rata against Utilisations made in
the Base Currency and any Utilisations in an Optional Currency.


 


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(e)                                  If:


 


(i)                                     a Lender assigns or transfers any of its rights or
obligations under the Senior Finance Documents or changes its Facility Office;
and


 


(ii)                                  as a
result of circumstances existing at the date the assignment, transfer or change
occurs, an Obligor would be obliged to make a payment to the New Lender or
Lender acting through its new Facility Office under Clause 16 (Tax gross-up and indemnities) or Clause 17
(Increased Costs),


 


then the New Lender or Lender acting through its
new Facility Office is only entitled to receive payment under those Clauses to
the same extent as the Existing Lender or Lender acting through its previous
Facility Office would have been if the assignment, transfer or change had not
occurred.


 


(f)                              Unless:


 


(i)                                     otherwise agreed between the Company and the relevant Existing
Lender; or


 


(ii)                                  the New Lender is a Lender, an Affiliate of a Lender or a
Related Fund,


 


the facilities may be transferred in any amount provided
that the aggregate of the Commitment and participation of each Lender, the
Affiliates of that Lender and any Related Funds will, after such transfer, be equal
to or greater than $2,500,000 or nil.


 


(g)                                 If the New
Lender to whom the assignment or transfer is being made is not party to the
Intercreditor Agreement as a Lender then it shall duly execute and deliver to
the Security Trustee and the Agent a deed of accession in the form required
under the Intercreditor Agreement so as to become a Senior Lender (as defined
in the Intercreditor Agreement) under the Intercreditor Agreement.


 


27.3                           Assignment or transfer fee


 


The
New Lender shall, on the date upon which an assignment or transfer takes effect
(other than pursuant to the Syndication), pay to the Agent (for its own
account) a fee of £2,000.


 


27.4                           Limitation of responsibility of Existing Lenders


 


(a)                                  Unless
expressly agreed to the contrary, an Existing Lender makes no representation or
warranty and assumes no responsibility to a New Lender for:


 


(i)                                     the legality, validity, effectiveness, adequacy or
enforceability of the Senior Finance Documents or any other documents;


 


(ii)                                  the financial condition of any Obligor or other person;


 


(iii)                               the performance and observance by any Obligor or other
person of its obligations under the Senior Finance Documents or any other
documents; or


 


(iv)                              the accuracy of any statements (whether written or oral)
made in or in connection with any Senior Finance Document or any other
document,


 


and any
representations or warranties implied by law are excluded.


 


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(b)                                 Each New
Lender confirms to the Existing Lender and the other Senior Finance Parties
that it:


 


(i)                                     has made
(and shall continue to make) its own independent investigation and assessment
of the financial condition and affairs of each Obligor and its related entities
in connection with its participation in this Agreement and has not relied
exclusively on any information provided to it by the Existing Lender in
connection with any Senior Finance Document; and


 


(ii)                                  will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities and any other person
whilst any amount is or may be outstanding under the Senior Finance Documents
or any Commitment is in force.


 


(c)                                  Nothing in
any Senior Finance Document obliges an Existing Lender to:


 


(i)                                     accept a re-transfer from a New Lender of any of the rights
and obligations assigned or transferred under this Clause 27; or


 


(ii)                                  support any losses directly or indirectly incurred by the New
Lender by reason of the non-performance by any Obligor or other person of its
obligations under the Senior Finance Documents or otherwise.


 


27.5                           Procedure for transfer


 


(a)                                  Subject to
the conditions set out in this Clause 27 a transfer is effected
in accordance with paragraph (b) below when the Agent executes an otherwise
duly completed Transfer Certificate delivered to it by the Existing Lender and
the New Lender. The Agent shall, subject to paragraph (b) below, as soon as
reasonably practicable after receipt by it of a duly completed Transfer
Certificate appearing on its face to comply with the terms of this Agreement
and delivered in accordance with the terms of this Agreement, execute that
Transfer Certificate.


 


(b)                                 The Agent
shall only be obliged to execute a Transfer Certificate delivered to it by the
Existing Lender and the New Lender upon its satisfaction with the results of
all “know your customer” or other checks relating to the identity of any person
that it is required to carry out in relation to the transfer to such New
Lender.


 


(c)                                  On the
Transfer Date:


 


(i)                                     to the
extent that in the Transfer Certificate the Existing Lender seeks to transfer
by novation its rights and obligations under the Senior Finance Documents, each
of the Obligors and the Existing Lender shall be released from further
obligations towards one another under the Senior Finance Documents and their
respective rights against one another under the Senior Finance Documents shall
be cancelled (being the “Discharged Rights
and Obligations”);


 


(ii)                                  each of the Obligors and the New Lender shall assume
obligations towards one another and/or acquire rights against one another which
differ from the Discharged Rights and Obligations only insofar as that Obligor
and the New Lender have assumed and/or acquired the same in place of that
Obligor and the Existing Lender;


 


(iii)                               the Agent,
the Mandated Lead Arrangers, the Security Trustee, the New Lender and other
Lenders shall acquire the same rights and assume the same obligations between
themselves as they would have acquired and assumed had the New Lender been an


 


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Original
Lender with the rights and/or obligations acquired or assumed by it as a result
of the transfer and to that extent the Agent, the Mandated Lead Arrangers, the
Security Trustee and the Existing Lender shall each be released from further
obligations to each other under the Senior Finance Documents; and


 


(iv)                              the New Lender shall become a Party as a “Lender”.


 


27.6                           Disclosure of information


 


(a)                                  Any Lender
may (and as otherwise agreed between the Company and that Lender) disclose


 


(i)                                     to any of its Affiliates, any Related Funds and any
other person:


 


(A)                              to (or through) whom that Lender assigns or transfers
(or may potentially assign or transfer) all or any of its rights and
obligations under this Agreement;


 


(B)                                with (or
through) whom that Lender enters into (or may potentially enter into) any sub-
participation in relation to, or any other transaction under which payments are
to be made by reference to, this Agreement or any Obligor;


 


(ii)                                  to a rating agency;


 


(iii)                               to its professional advisers; or


 


(iv)                              to whom, and to the extent that, information is required
to be disclosed by any applicable law or regulation,


 


any
information about any Obligor, the Group, any other person and the Transaction
Documents as that Lender shall consider appropriate if, in relation to
paragraphs (i) to (iii) above, the person to whom the information is to be
given has entered into a Confidentiality Undertaking. This Clause supersedes
any previous agreement relating to the confidentiality of this information.


 


(b)                                 The
Parties do not expect that any statements will be provided by or on behalf of
any Party to another Party (or such other Party’s employees, representatives or
agents) as to the potential United States federal income tax consequences of
the Facilities.  If any such statements
are made, then notwithstanding anything in this Agreement to the contrary, the
Party to whom the statement is made (and each of its employees, representatives
or other agents) may disclose to any and all persons, without limitation of any
kind, the tax treatment and tax structure of the Facilities and all materials
of any kind (including opinions or other tax analyses) that are provided to
such Party relating to such tax treatment and tax structure.  However, any information relating to the tax
treatment or tax structure shall remain subject to the confidentiality
provisions hereof (and the foregoing sentence shall not apply) to the extent
reasonably necessary to enable the Parties, their respective Affiliates, and
their respective Affiliates’ directors and employees to comply with applicable
securities laws.  For this purpose, “tax treatment” and “tax structure” means any facts relevant to
the United States federal income tax treatment applicable to the Facilities but
does not include information relating to the identity of the Parties, provided
that with respect to any document or similar item that contains information
concerning the tax treatment or tax structure of the Facilities as well as
other information, this paragraph shall only apply to such portions of such
document or similar item that relate to the tax treatment or tax structure of
the Facilities.


 


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27.7                           Revolving Facility assignments and transfers


 


(a)                                  Notwithstanding
any other provision of this Agreement, if a Revolving Facility Lender wishes to
enter into an assignment or transfer in relation to the Revolving Facility
(other than in relation to an assignment of a Revolving Facility Loan) at a
time when any Letters of Credit or Bank Guarantees are outstanding under the
Revolving Facility or any contingent liability is outstanding under an
Ancillary Facility, the consent of the Issuing Bank in respect of the
assignment or transfer of that Revolving Facility Lender’s participation in any
Revolving Facility Utilisation by way of Letters of Credit or Bank Guarantees
and/or the consent of the Ancillary Lender in respect of the assignment or
transfer of that Revolving Facility Lender’s participation in the Ancillary
Facility will be required (such consent not to be unreasonably withheld or
delayed).


 


(b)                                 If
paragraph (a) above and the conditions and procedure for transfer specified in
this Clause 27 are satisfied, then on the Transfer Date the Issuing Bank
and the New Lender shall acquire the same rights and assume the same
obligations between themselves as they would have acquired and assumed had the
New Lender been an Original Lender with the rights and/or obligations acquired
or assumed by it as a result of the transfer and to that extent the Issuing
Bank and the Existing Lender shall each be released from further obligations to
each other under this Agreement.


 


27.8                           Assignment by way of Security


 


In
addition to the other assignment rights provided in this Clause 27, each Lender
may assign, as collateral or otherwise, any of its rights under this Agreement
(including rights to payments of principal or interest on the Loans) to any
trustee for the benefit of the holders of such Lender’s securities, provided
that no such assignment shall release the assigning Lender from any of its
obligations under this Agreement.


 


27.9                           Sub-participations


 


A
Lender may sub-participate or sub-contract any of its rights or obligations
under this Agreement provided that such Lender remains liable under this
Agreement in relation to such obligations.


 


28.                                 CHANGES TO
THE OBLIGORS


 


28.1                           Assignments and transfer by Obligors


 


No
Obligor may assign any of its rights or transfer any of its rights or
obligations under the Senior Finance Documents.


 


28.2                           Additional Borrowers


 


(a)                                  Subject to
compliance with the provisions of paragraphs (b) and (c) of Clause 23.11 (Know Your Customer Requirements), the
Company may request that any of its wholly-owned Subsidiaries becomes an
Additional Borrower. That Subsidiary shall become an Additional Borrower if:


 


(i)                                     all the Lenders approve the addition of that member of
the Group and agree with the Company on the extent to which the Facilities will
be available to that member of the Group;


 


(ii)                                  the Company delivers to the Agent a duly completed and
executed Accession Letter;


 


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(iii)                               the Company confirms that no Default is continuing or
would occur as a result of that Subsidiary becoming an Additional Borrower;


 


(iv)                              that Subsidiary becomes an Additional Guarantor in
accordance with Clause 28.3 (Additional
Guarantors); and


 


(v)                                 the Agent
has received all of the documents and other evidence listed in Part III of
Schedule 2 (Conditions precedent)
in relation to that Additional Borrower (other than those referred to in
paragraph 3 of Part III of Schedule 2 (Conditions
precedent) where that Additional Borrower is not required to execute
and deliver a Debenture 2), each in form and substance reasonably satisfactory
to the Agent.


 


(b)                                 The Agent
shall notify the Company and the Lenders promptly upon being satisfied that it
has received (in form and substance satisfactory to it) all such documents and
other evidence listed in Part Ill of Schedule 2 (Conditions precedent).


 


28.3                           Additional Guarantors


 


(a)                                  Subject to
compliance with the provisions of paragraphs (b) and (c) of Clause 23.11 (Know Your Customer Requirements), the
Company may request that any of its wholly-owned Subsidiaries become an
Additional Guarantor. That Subsidiary, and/or any Subsidiary which is required
by this Agreement to become an Additional Guarantor, shall become an Additional
Guarantor if:


 


(i)                                     the Company delivers to the Agent a duly completed and
executed Accession Letter; and


 


(ii)                                  the Agent
has received all of the documents and other evidence listed in Part Ill of
Schedule 2 (Conditions precedent)
in relation to that Additional Guarantor (other than those referred to in
paragraph 3 of Part III of Schedule 2 (Conditions
precedent) where that Additional Guarantor is not required to
execute and deliver a Debenture 2), each in form and substance reasonably
satisfactory to the Agent.


 


(b)                                 The Agent
shall notify the Company and the Lenders promptly upon being satisfied that it
has received (in form and substance satisfactory to it) all such documents and
other evidence listed in Part Ill of Schedule 2 (Conditions precedent).


 


28.4                           Repetition of Representations


 


Delivery
of an Accession Letter constitutes confirmation by the relevant Subsidiary that
the Repeating Representations and each of the representations set out in Clause
22.5 (Validity and admissibility in evidence)
are true and correct in relation to it as at the date of delivery as if made by
reference to the facts and circumstances then existing.


 


28.5                           Release of Guarantors and Security


 


(a)                                  If a
Guarantor ceases to be a member of the Group in accordance with this Agreement,
that Guarantor shall be released from all its obligations under the Senior
Finance Documents and the Hedging Documents.


 


(b)                                 If all of
the Senior Finance Parties agree in writing with the Company that a Guarantor
may cease to be a Guarantor, that Guarantor shall be released from all its
obligations under the Senior Finance Documents and the Hedging Documents.


 


(c)                                  The
Security Trustee shall, at the request and cost of the Company, execute such
documents as may be required to release that Guarantor pursuant to paragraph
(a) above.


 


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(d)                                 The
Security Trustee is authorised to release any Security created by the Security
Documents over assets disposed of to a person or persons outside the Group
where such disposal is a Permitted Disposal or where such disposal is being
effected in circumstances where the Security Trustee is enforcing any of the
Security created by the Security Documents as permitted in accordance with the
terms of the Intercreditor Agreement.


 


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SECTION 10


 


THE SENIOR FINANCE PARTIES


 


29.                                 ROLE OF THE
AGENT, THE MANDATED LEAD ARRANGERS AND THE BOOKRUNNERS


 


29.1                           Appointment of the Agent


 


(a)                                  Each other Senior
Finance Party appoints the Agent to act as its agent under and in connection
with the Senior Finance Documents.


 


(b)                                 Each other Senior
Finance Party authorises the Agent to exercise the rights, powers, authorities
and discretions specifically given to it under or in connection with the Senior
Finance Documents together with any other incidental rights, powers,
authorities and discretions.


 


(c)                                  Each other Senior
Finance Party authorises the Agent to execute the lntercreditor Agreement on
its behalf.


 


(d)                                 Each other Senior
Finance Party authorises each of the Agent and the Mandated Lead Arrangers to
agree, accept and sign on its behalf the terms of any reliance or engagement
letter in relation to any Report or any other report or letter provided by any
person in connection with the Senior Finance Documents and Transaction
Documents or the transactions contemplated in them (including any net asset
letter in connection with financial assistance procedures) and, by becoming a
party to this Agreement, ratifies the terms of any such letter which has been
entered into before the date of this Agreement in contemplation of this
Agreement.


 


29.2                           Duties of the Agent


 


(a)                                  The Agent shall
promptly forward to a Party the original or a copy of any document which is
delivered to the Agent for that Party by any other Party.


 


(b)                                 Except where a Senior
Finance Document specifically provides otherwise, the Agent is not obliged to
review or check the adequacy, accuracy or completeness of any document it
forwards to another Party.


 


(c)                                  If the Agent receives
notice from a Party referring to this Agreement, describing a Default and
stating that the circumstance described is a Default, it shall promptly notify
the Senior Finance Parties.


 


(d)                                 If the Agent is aware
of the non-payment of any principal, interest, commitment fee or other fee
payable to a Senior Finance Party (other than the Agent or the Mandated Lead
Arrangers) under this Agreement, it shall promptly notify the other Senior
Finance Parties.


 


(e)                                  The duties of the
Agent under the Senior Finance Documents are solely mechanical and
administrative in nature.


 


29.3                           Role of the Mandated Lead Arrangers and the Bookrunners


 


Except
as specifically provided in the Senior Finance Documents, neither the Mandated
Lead Arrangers nor the Bookrunners have any obligations of any kind to any
other Party under or in connection with any Senior Finance Document.


 


29.4                           No fiduciary duties


 


(a)                                  Nothing in this
Agreement constitutes the Agent or the Mandated Lead Arrangers or the
Bookrunners as a trustee or fiduciary of any other person.


 


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(b)                                 Neither the Agent nor
the Mandated Lead Arrangers nor the Bookrunners shall be bound to account to
any Lender for any sum or the profit element of any sum received by it for its
own account.


 


29.5                           Business with the Group


 


The
Agent, the Mandated Lead Arrangers and the Bookrunners may accept deposits
from, lend money to and generally engage in any kind of banking or other
business with any member of the Group or any other person.


 


29.6                           Rights and discretions of the Agent


 


(a)                                  The Agent may rely
on:


 


(i)                                     any
representation, notice or document believed by it to be genuine, correct and
appropriately authorised; and


 


(ii)                                  any statement made by a director, authorised signatory or
employee of any person regarding any matters which may reasonably be assumed to
be within his knowledge or within his power to verify.


 


(b)                                 The Agent may assume,
unless it has received notice to the contrary in its capacity as agent for the
Lenders, that:


 


(i)                                     no Default
has occurred (unless it has actual knowledge of a Default arising under Clause
26.1 (Non-payment));


 


(ii)                                  any right, power, authority or discretion vested in any
Party or any group of Lenders has not been exercised; and


 


(iii)                               any notice or request made by the Company (other than a
Utilisation Request or Selection Notice) is made on behalf of and with the
consent and knowledge of all the Obligors.


 


(c)                                  The Agent may engage,
pay for and rely on the advice or services of any lawyers, accountants,
surveyors or other experts.


 


(d)                                 The Agent may act in
relation to the Senior Finance Documents through its personnel and agents.


 


(e)                                  The Agent may
disclose to any other Party any information it reasonably believes it has
received as agent under this Agreement.


 


(f)                                    Notwithstanding any
other provision of any Senior Finance Document to the contrary, neither the
Agent nor the Mandated Lead Arrangers nor the Bookrunners are obliged to do or
omit to do anything if it would or might in their reasonable opinion constitute
a breach of any law or regulation or a breach of a fiduciary duty or duty of
confidentiality.


 


29.7                           Majority Lenders’ instructions


 


(a)                                  Unless a contrary
indication appears in a Senior Finance Document, the Agent shall (i) exercise
any right, power, authority or discretion vested in it as Agent in accordance
with any instructions given to it by the Majority Lenders (or, if so instructed
by the Majority Lenders, refrain from exercising any right, power, authority or
discretion vested in it as Agent) and (ii) not be liable for


 


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any act (or omission) if it acts (or refrains from taking
any action) in accordance with an instruction of the Majority Lenders.


 


(b)                                 Unless a contrary
indication appears in a Senior Finance Document, any instructions given by the
Majority Lenders will be binding on all the Senior Finance Parties.


 


(c)                                  The Agent may refrain
from acting in accordance with the instructions of the Majority Lenders (or, if
appropriate, the Lenders) until it has received such security as it may require
for any cost, loss or liability (together with any associated VAT) which it may
incur in complying with the instructions.


 


(d)                                 In the absence of
instructions from the Majority Lenders (or, if appropriate, the Lenders), the
Agent may act (or refrain from taking action) as it considers to be in the best
interest of the Lenders.


 


(e)                                  The Agent is not
authorised to act on behalf of a Lender (without first obtaining that Lender’s
consent) in any legal or arbitration proceedings relating to any Senior Finance
Document.


 


29.8                           Responsibility for documentation


 


Neither
the Agent nor the Mandated Lead Arrangers nor the Bookrunners:


 


(a)                                  are responsible for
the adequacy, accuracy and/or completeness of any information (whether oral or
written) supplied by the Agent, the Mandated Lead Arrangers, the Bookrunners,
an Obligor or any other person given in or in connection with any Senior
Finance Document or any of the Information Package; or


 


(b)                                 are responsible for
the legality, validity, effectiveness, adequacy or enforceability of any Senior
Finance Document or any other agreement, arrangement or document entered into,
made or executed in anticipation of or in connection with any Senior Finance
Document.


 


29.9                           Exclusion of liability


 


(a)                                  Without limiting
paragraph (b) below, the Agent will not be liable for any action taken by it
under or in connection with any Senior Finance Document, unless directly caused
by its gross negligence or wilful misconduct.


 


(b)                                 No Party (other than
the Agent) may take any proceedings against any officer, employee or agent of
the Agent in respect of any claim it might have against the Agent or in respect
of any act or omission of any kind by that officer, employee or agent in
relation to any Senior Finance Document and any officer, employee or agent of
the Agent may rely on this Clause.


 


(c)                                  The Agent will not be
liable for any delay (or any related consequences) in crediting an account with
an amount required under the Senior Finance Documents to be paid by it if it
has taken all necessary steps as soon as reasonably practicable to comply with
the regulations or operating procedures of any recognised clearing or
settlement system used by it for that purpose.


 


(d)                                 Nothing in this
Agreement shall oblige the Agent or any Arranger to carry out any “know your
customer” or other checks in relation to the identity of any person on behalf
of any Lender and each Lender confirms to the Agent and each Arranger that it
is solely responsible for any such checks it is required to carry out and that
it may not rely on any statement in relation to such checks made by any other
person.


 


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29.10                     Lenders’ indemnity to the Agent


 


(a)                                  Subject to paragraph
(b) below, each Lender shall (in proportion to its Available Commitments and its
Available Ancillary Commitment and participations in the Utilisations and
utilisations of the Ancillary Facilities then outstanding to the Available
Facilities and all the Utilisations and utilisations of the Ancillary
Facilities then outstanding) indemnify the Agent, within 3 Business Days of
demand, against any cost, loss or liability incurred by the Agent (otherwise
than by reason of its gross negligence or wilful misconduct) in acting as Agent
under the Senior Finance Documents (unless it has been reimbursed by an Obligor
pursuant to a Senior Finance Document).


 


(b)                                 If the Available
Facilities are then zero, each Lender’s indemnity under paragraph (a) above
shall be in proportion to its Available Commitments to the Available Facilities
immediately prior to their reduction to zero, unless there are then any
Utilisations and utilisations of the Ancillary Facilities outstanding, in which
case it shall be in proportion to its participations in the Utilisations and
utilisations of the Ancillary Facilities then outstanding to all the
Utilisations and utilisations of the Ancillary Facilities then outstanding.


 


29.11                     Resignation of the Agent


 


(a)                                  The Agent may, after
consultation with the Company, resign and appoint one of its Affiliates acting
through an office in the United Kingdom as successor by giving notice to the
other Senior Finance Parties and the Company.


 


(b)                                 Alternatively the
Agent may resign by giving notice to the other Senior Finance Parties and the
Company, in which case the Majority Lenders (after consultation with the
Company) may appoint a successor Agent.


 


(c)                                  If the Majority
Lenders have not appointed a successor Agent in accordance with
paragraph (b) above within 30 days after notice of resignation was
given, the Agent (after consultation with the Company) may appoint a successor
Agent (acting through an office in the United Kingdom).


 


(d)                                 The retiring Agent
shall, at its own cost, make available to its successor such documents and
records and provide such assistance as its successor may reasonably request for
the purposes of performing its functions as Agent under the Senior Finance
Documents.


 


(e)                                  The resignation
notice of the Agent shall only take effect upon the appointment of a successor.


 


(f)                                    Upon the appointment
of a successor, the retiring Agent shall be discharged from any further
obligation in respect of the Senior Finance Documents but shall remain entitled
to the benefit of this Clause 29. Its successor and each of the other Parties
shall have the same rights and obligations amongst themselves as they would
have had if such successor had been an original Party.


 


(g)                                 After consultation
with the Company, the Majority Lenders may, by notice to the Agent, require it
to resign in accordance with paragraph (b) above. In this event, the Agent
shall resign in accordance with paragraph (b) above.


 


29.12                     Confidentiality


 


(a)                                  The Agent (in acting
as agent for the Senior Finance Parties) shall be regarded as acting through
its respective agency or trustee division which in each case shall be treated
as a separate entity from any other of its divisions or departments.


 


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(b)                                 If information is
received by another division or department of the Agent, it may be treated as
confidential to that division or department and the Agent shall not be deemed
to have notice of it.


 


29.13                     Relationship
with the Lenders


 


(a)                                  The Agent may treat
each Lender as a Lender, entitled to payments under this Agreement and acting
through its Facility Office unless it has received not less than 5 Business
Days’ prior notice from that Lender to the contrary in accordance with the
terms of this Agreement.


 


(b)                                 Each Lender shall
supply the Agent with any information required by the Agent in order to
calculate the Mandatory Cost in accordance with Schedule 4 (Mandatory Cost formulae).


 


29.14                     Credit
appraisal by the Lenders


 


Without
affecting the responsibility of any Obligor for information supplied by it or
on its behalf in connection with any Senior Finance Document, each Lender confirms
to the Agent, the Mandated Lead Arrangers and the Bookrunners that it has been,
and will continue to be, solely responsible for making its own independent
appraisal and investigation of all risks arising under or in connection with
any Senior Finance Document including but not limited to:


 


(a)                                  the financial
condition, status and nature of each member of the Group and the Acquired
Group;


 


(b)                                 the legality,
validity, effectiveness, adequacy or enforceability of any Senior Finance
Document and any other agreement, Security, arrangement or document entered
into, made or executed in anticipation of, under or in connection with any
Senior Finance Document;


 


(c)                                  whether that Lender
has recourse, and the nature and extent of that recourse, against any Party or
any of its respective assets under or in connection with any Senior Finance
Document, the transactions contemplated by the Senior Finance Documents or any
other agreement, Security, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any Senior Finance
Document; and


 


(d)                                 the adequacy,
accuracy and/or completeness of the Information Package and any other
information provided by the Agent, any Party or by any other person under or in
connection with any Senior Finance Document, the transactions contemplated by
the Senior Finance Documents or any other agreement, Security, arrangement or
document entered into, made or executed in anticipation of, under or in
connection with any Senior Finance Document.


 


29.15                     Reference Banks


 


If a
Reference Bank (or, if a Reference Bank is not a Lender, the Lender of which it
is an Affiliate) ceases to be a Lender, the Agent shall (in consultation with
the Company) appoint another Lender or an Affiliate of a Lender to replace that
Reference Bank.


 


29.16                     Management time of the Agent


 


Any
amount payable to the Agent under Clause 18.3 (Indemnity
to the Agent), Clause 20 (Costs
and expenses) and Clause 29.10 (Lenders’ indemnity to the Agent) shall include the cost of
utilising its management time or other resources and will be calculated on the
basis of such reasonable daily or hourly rates as it may notify to the Company
and the Lenders, and is in addition to any fee paid or payable to it under
Clause 15 (Fees).


 


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29.17                     Deduction from amounts payable by the Agent


 


If
any Party owes an amount to the Agent under the Senior Finance Documents, the
Agent may, after giving notice to that Party, deduct an amount not exceeding
that amount from any payment to that Party which the Agent would otherwise be
obliged to make under the Senior Finance Documents and apply the amount
deducted in or towards satisfaction of the amount owed. For the purposes of the
Senior Finance Documents, that Party shall be regarded as having received any
amount so deducted.


 


30.                                 CONDUCT OF BUSINESS BY THE SENIOR FINANCE PARTIES


 


No
provision of this Agreement will:


 


(a)                                  interfere with the
right of any Senior Finance Party to arrange its affairs (tax or otherwise) in
whatever manner it thinks fit;


 


(b)                                 oblige any Senior
Finance Party to investigate or claim any credit, relief, remission or
repayment available to it or the extent, order and manner of any claim; or


 


(c)                                  oblige any
Senior Finance Party to disclose any information relating to its affairs (tax
or otherwise) or any computations in respect of Tax.


 


31.                                 SHARING AMONG THE SENIOR
FINANCE PARTIES


 


31.1                           Payments to Senior Finance Parties


 


If a
Senior Finance Party (a “Recovering Senior
Finance Party”) receives or recovers any amount from an Obligor
other than in accordance with Clause 32 (Payment
mechanics) and applies that amount to a payment due under the Senior
Finance Documents then:


 


(a)                                  the
Recovering Senior Finance Party shall, within 3 Business Days, notify details
of the receipt or recovery to the Agent;


 


(b)                                 the Agent shall
determine whether the receipt or recovery is in excess of the amount the
Recovering Senior Finance Party would have been paid had the receipt or
recovery been received or made by the Agent and distributed in accordance with
Clause 32 (Payment mechanics),
without taking account of any Tax which would be imposed on the Agent in
relation to the receipt, recovery or distribution; and


 


(c)                                  the Recovering Senior
Finance Party shall, within 3 Business Days of demand by the Agent, pay to the
Agent an amount (the “Sharing Payment”)
equal to such receipt or recovery less any amount which the Agent determines
may be retained by the Recovering Senior Finance Party as its share of any
payment to be made, in accordance with Clause 32.5 (Partial payments).


 


31.2                           Redistribution of payments


 


The
Agent shall treat the Sharing Payment as if it had been paid by the relevant
Obligor and distribute it between the Senior Finance Parties (other than the
Recovering Senior Finance Party) in accordance with Clause 32.5 (Partial payments).


 


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31.3                           Recovering Senior Finance Party’s rights


 


(a)                                  On a distribution by
the Agent under Clause 31.2 (Redistribution
of payments), the Recovering Senior Finance Party will be subrogated
to the rights of the Senior Finance Parties which have shared in the
redistribution.


 


(b)                                 If and to the extent
that the Recovering Senior Finance Party is not able to rely on its rights
under paragraph (a) above, the relevant Obligor shall be liable to the
Recovering Senior Finance Party for a debt equal to the Sharing Payment which
is within 3 Business Days of demand.


 


31.4                           Reversal of redistribution


 


If
any part of the Sharing Payment received or recovered by a Recovering Senior
Finance Party becomes repayable and is repaid by that Recovering Senior Finance
Party, then:


 


(a)                                  each Senior Finance
Party which has received a share of the relevant Sharing Payment pursuant to
Clause 31.2 (Redistribution of payments)
shall, upon request of the Agent, pay to the Agent for account of that
Recovering Senior Finance Party an amount equal to the appropriate part of its
share of the Sharing Payment (together with an amount as is necessary to
reimburse that Recovering Senior Finance Party for its proportion of any
interest on the Sharing Payment which that Recovering Senior Finance Party is
required to pay); and


 


(b)                                 that
Recovering Senior Finance Party’s rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be liable to the
reimbursing Senior Finance Party for the amount so reimbursed.


 


31.5                           Exceptions


 


(a)                                  This Clause 31 shall
not apply to the extent that the Recovering Senior Finance Party would not,
after making any payment pursuant to this Clause 31, have a valid and
enforceable claim against the relevant Obligor.


 


(b)                                 A Recovering Senior
Finance Party is not obliged to share with any other Senior Finance Party any
amount which the Recovering Senior Finance Party has received or recovered as a
result of taking legal or arbitration proceedings, if:


 


(i)                                     it notified
that other Senior Finance Party of the legal or arbitration proceedings; and


 


(ii)                                  that other
Senior Finance Party had an opportunity to participate in those legal or
arbitration proceedings but did not do so as soon as reasonably practicable
having received notice and did not take separate legal or arbitration
proceedings.


 


(c)                                  This Clause 31:


 


(i)                                     shall not apply to
any receipt or recovery by any Senior Finance Party in its capacity as
Ancillary Lender at any time prior to the Acceleration Date nor to any receipt
or recovery by an Ancillary Lender as a result of exercising its rights under
any Ancillary Facility Documents, respectively, to combine accounts, set-off or
net sums due and payable by and to it under those documents in its capacity as
an Ancillary Lender, as the case may be, or as a result of exercising its
rights under any charge over bank accounts granted to it under any such
document (in each case, which the Ancillary Lender shall be entitled to do
despite any charge over such bank accounts in favour of the Finance Parties);
but


 


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(ii)                                  shall apply to all other receipts or recoveries by Ancillary
Lenders which arise following the Acceleration Date.


 


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SECTION 11


 


ADMINISTRATION


 


32.                                 PAYMENT MECHANICS


 


32.1                           Payments to the Agent


 


(a)                                  On each date on which
an Obligor or a Lender is required to make a payment under a Finance Document,
that Obligor (subject to the terms of Clause 11.1 (Turnover
Obligations) of the Intercreditor Agreement) or Lender shall make
the same available to the Agent (unless a contrary indication appears in a
Finance Document) for value on the due date at the time and in such funds
specified by the Agent as being customary at the time for settlement of
transactions in the relevant currency in the place of payment.


 


(b)                                 Payment shall be made
to such account in the principal financial centre of the country of that
currency (or, in relation to euro, in the principal financial centre in a
Participating Member State or London) with such bank as the Agent specifies.


 


32.2                           Distributions by the Agent


 


Each
payment received by the Agent under the Senior Finance Documents for another
Party shall, subject to Clause 32.3 (Distributions to an
Obligor) and Clause 32.4 (Clawback) and
to 11.1 (Turnover Obligations) of the
Intercreditor Agreement, be made available by the Agent as soon as practicable
after receipt to the Party entitled to receive payment in accordance with this
Agreement (in the case of a Lender, for the account of its Facility Office), to
such account as that Party may notify to the Agent by not less than
5 Business Days’ notice with a bank in the principal financial centre of
the country of that currency (or, in relation to euro, in the principal
financial centre of a Participating Member State or London).


 


32.3                           Distributions to an Obligor


 


The
Agent may (with the consent of the Obligor or in accordance with Clause 33 (Set-off) apply any amount received by it for that Obligor in
or towards payment (on the date and in the currency and funds of receipt) of
any amount due from that Obligor under the Senior Finance Documents or in or
towards purchase of any amount of any currency to be so applied.


 


32.4                           Clawback


 


(a)                                  Where a sum is to be
paid to the Agent under the Senior Finance Documents for another Party, the
Agent is not obliged to pay that sum to that other Party (or to enter into or
perform any related exchange contract) until it has been able to establish to
its satisfaction that it has actually received that sum.


 


(b)                                 If the Agent pays an
amount to another Party and it proves to be the case that it had not actually
received that amount, then the Party to whom that amount (or the proceeds of
any related exchange contract) was paid shall on demand refund the same to the
Agent together with interest on that amount from the date of payment to the
date of receipt by the Agent, calculated by it to reflect its cost of funds.


 


32.5                           Partial payments


 


(a)                                  If the Agent receives
a payment that is insufficient to discharge all the amounts then due and
payable by an Obligor under the Senior Finance Documents, the Agent shall apply
that payment 


 


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towards the obligations of
that Obligor under the Senior 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 Security Trustee, the Issuing Bank, the
Mandated Lead Arrangers or the Bookrunners under the Senior Finance Documents;


 


(ii)                                  secondly, in or towards
payment pro rata of any accrued interest, fee or commission due but unpaid
under this Agreement or any Ancillary Facility Document;


 


(iii)                               thirdly, in or towards payment pro rata of any principal due
but unpaid under this Agreement or any Ancillary Facility Document and any
amount due but unpaid under Clause 7.2 (Claims
under a Letter of Credit or Bank Guarantee) and Clause 7.3 (Indemnities); and


 


(iv)                              fourthly, in or towards
payment pro rata of any other sum due but unpaid under the Senior Finance
Documents or any Ancillary Facility Document,


 


provided
that the Agent shall not make any such payments to any Ancillary Lender prior
to the Agent delivering a notice to the Company pursuant to paragraph (a) or
(c) of Clause 26.21 (Acceleration)
or any date on which the Facilities are cancelled under Clause 11.2 (Change of Control, Listing and Sale).


 


(b)                                 The Agent shall, if
so directed by the Majority Facility A Lenders, the Majority Facility B
Lenders, the Majority Facility C Lenders, the Majority Capex Facility Lenders
and the Majority Revolving Facility Lenders vary the order set out in
paragraphs (a)(ii) to (iv) above.


 


(c)                                  Paragraphs (a) and
(b) above will override any appropriation made by an Obligor.


 


32.6                           No set-off by Obligors


 


All
payments to be made by an Obligor under the Senior Finance Documents shall be
calculated and be made without (and free and clear of any deduction for)
set-off or counterclaim.


 


32.7                           Business Days


 


(a)                                  Any payment which is
due to be made on a day that is not a Business Day shall be made on the next
Business Day in the same calendar month (if there is one) or the preceding
Business Day (if there is not).


 


(b)                                 During any extension
of the due date for payment of any principal or an Unpaid Sum under this
Agreement interest is payable on the principal or Unpaid Sum at the rate
payable on the original due date.


 


32.8                           Currency of account


 


(a)                                  Subject to paragraphs
(b) to (e) below, the Base Currency is the currency of account and payment for
any sum due from an Obligor under any Senior Finance Document.


 


(b)                                 A repayment of a Utilisation or Unpaid Sum or a part of a Utilisation or
Unpaid Sum shall be made in the currency in which that Utilisation or Unpaid
Sum is denominated on its due date.


 


(c)                                  Each payment of
interest shall be made in the currency in which the sum in respect of which the
interest is payable was denominated when that interest accrued.


 


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(d)                                 Each payment in
respect of costs, expenses or Taxes shall be made in the currency in which the
costs, expenses or Taxes are incurred.


 


(e)                                  Any amount expressed
to be payable in a currency other than the Base Currency shall be paid in that
other currency.


 


32.9                           Change of currency


 


(a)                                  Unless otherwise
prohibited by law, if more than one currency or currency unit are at the same
time recognised by the central bank of any country as the lawful currency of
that country, then:


 


(i)                                     any reference in the
Senior Finance Documents to, and any obligations arising under the Senior
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 Company); and


 


(ii)                                  any
translation from one currency or currency unit to another shall be at the
official rate of exchange recognised by the central bank for the conversion of
that currency or currency unit into the other, rounded up or down by the Agent
(acting reasonably).


 


(b)                                 If a change in any
currency of a country occurs, this Agreement will, to the extent the Agent
(acting reasonably and after consultation with the Company) specifies to be
necessary, be amended to comply with any generally accepted conventions and
market practice in the Relevant lnterbank Market and otherwise to reflect the
change in currency.


 


33.                                 SET-OFF


 


A
Senior Finance Party may set off any matured obligation due from an Obligor
under the Senior Finance Documents (to the extent beneficially owned by that
Senior Finance Party) against any matured obligation owed by that Senior
Finance Party to that Obligor, regardless of the place of payment, booking
branch or currency of either obligation. If the obligations are in different
currencies, the Senior Finance Party may convert either obligation at a market
rate of exchange in its usual course of business for the purpose of the
set-off.


 


34.                                 NOTICES


 


34.1                           Communications in writing


 


Any
communication to be made under or in connection with the Senior Finance
Documents shall be made in writing and, unless otherwise stated, may be made by
fax or letter.


 


34.2                           Addresses


 


The
address and fax number (and the department or officer, if any, for whose
attention the communication is to be made) of each Party for any communication
or document to be made or delivered under or in connection with the Senior
Finance Documents is:


 


(a)                                  in the case
of the Company, that identified with its name below;


 


(b)                                 in the case of each
Lender or any other Original Obligor, that notified in writing to the Agent on
or prior to the date on which it becomes a Party; and


 


(c)                                  in the case
of the Agent, the Issuing Bank and the Security Trustee, that identified with
its name below,


 


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or any substitute address, fax number or department or
officer as the Party may notify to the Agent (or the Agent may notify to the
other Parties, if a change is made by the Agent) by not less than
5 Business Days’ notice.


 


34.3                           Delivery


 


(a)                                  Any communication or
document made or delivered by one person to another under or in connection with
the Senior Finance Documents will only be effective:


 


(i)                                     if by way of
fax, when received in legible form; or


 


(ii)                                  if by way
of letter, when it has been left at the relevant address or 5 Business
Days after being deposited in the post postage prepaid in an envelope addressed
to it at that address,


 


and, if a particular department or officer is specified
as part of its address details provided under Clause 34.2 (Addresses), if addressed to that
department or officer.


 


(b)                                 Any communication or
document to be made or delivered to the Agent or the Security Trustee will be
effective only when actually received by it and then only if it is expressly
marked for the attention of the department or officer identified with its
signature below (or any substitute department or officer as it shall specify
for this purpose).


 


(c)                                  All notices from or
to an Obligor shall be sent through the Agent.


 


(d)                                 Any communication or
document made or delivered to the Company in accordance with this Clause will
be deemed to have been made or delivered to each of the Obligors.


 


34.4                           Notification of address and fax number


 


Promptly
upon receipt of notification of an address and fax number or change of address
or fax number pursuant to Clause 34.2 (Addresses)
or changing its own address or fax number, the Agent shall notify the other
Parties.


 


34.5                           Electronic communication


 


(a)                                  Any communication to
be made between the Agent and a Lender under or in connection with the Senior
Finance Documents may be made by electronic mail or other electronic means, if
the Agent and the relevant Lender:


 


(i)                                     agree that,
unless and until notified to the contrary, this is to be an accepted form of
communication;


 


(ii)                                  notify
each other in writing of their electronic mail address and/or any other
information required to enable the sending and receipt of information by that
means; and


 


(iii)                               notify each other of any change to their address or any
other such information supplied by them.


 


(b)                                 Any electronic
communication made between the Agent and a Lender will be effective only when
actually received in readable form and in the case of any electronic communication
made by a Lender to the Agent only if it is addressed in such a manner as the
Agent shall specify for this purpose.


 


34.6                           English language


 


(a)                                  Any notice given
under or in connection with any Senior Finance Document must be in English.


 


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(b)                                 All other documents
provided under or in connection with any Senior Finance Document must be:


 


(i)                                     in English;
or


 


(ii)                                  if not in
English, and if so required by the Agent, accompanied by a certified English translation
and, in this case, the English translation will prevail unless the document is
a constitutional, statutory or other official document or a Security Document.


 


35.                                 CALCULATIONS AND CERTIFICATES


 


35.1                           Accounts


 


In
any litigation or arbitration proceedings arising out of or in connection with
a Senior Finance Document, the entries made in the accounts maintained by a
Senior Finance Party are prima facie
evidence of the matters to which they relate.


 


35.2                           Certificates and Determinations


 


Any
certification or determination by a Senior Finance Party of a rate or amount
under any Senior Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.


 


35.3                           Day count convention


 


Subject
to paragraph (d) of Clause 15.4 (Fees
payable in respect of Letters of Credit and Bank Guarantees), in
respect of which a 360-day count convention shall apply, any interest,
commission or fee accruing under a Senior Finance Document will accrue from day
to day and is calculated on the basis of the actual number of days elapsed and
a year of 365 days or, in any case where the practice in the Relevant
lnterbank Market differs, in accordance with that market practice.


 


36.                                 PARTIAL INVALIDITY


 


If,
at any time, any provision of the Senior Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the remaining
provisions nor the legality, validity or enforceability of such provision under
the law of any other jurisdiction will in any way be affected or impaired.


 


37.                                 REMEDIES AND WAIVERS


 


No
failure to exercise, nor any delay in exercising, on the part of any Senior
Finance Party, any right or remedy under the Senior Finance Documents shall
operate as a waiver, nor shall any single or partial exercise of any right or
remedy prevent any further or other exercise or the exercise of any other right
or remedy. The rights and remedies provided in this Agreement are cumulative
and not exclusive of any rights or remedies provided by law.


 


159





















 


38.                                 AMENDMENTS AND WAIVERS


 


38.1                           Required consents


 


(a)                                  Subject to Clause
38.2 (Exceptions) any term of the
Senior Finance Documents may be amended or waived only with the consent of the
Majority Lenders and the Obligor’s Agent and any such amendment or waiver will
be binding on all Parties.


 


(b)                                 The Agent may effect,
on behalf of any Senior Finance Party, any amendment or waiver permitted by
this Clause 38.


 


38.2                           Exceptions


 


(a)                                  An amendment or
waiver that has the effect of changing or which relates to:


 


(i)                                     the definition of
“Certain Funds Default”, “Certain Funds Period”, “Majority Lenders”, “Majority
Facility A Lenders”, “Majority Facility B Lenders”, “Majority Facility C
Lenders”, “Majority Capex Lenders” or “Majority Revolving Lenders” in Clause
1.1 (Definitions);


 


(ii)                                  an
extension to the date of payment of any amount under the Senior Finance
Documents other than a prepayment under Clauses 11.5 (Mandatory prepayment from Net Sale Proceeds),
11.6 (Mandatory prepayment from Insurance
Proceeds), 11.7 (Mandatory
prepayment from Net Recovery Proceeds) or 11.8 (Mandatory prepayment from Surplus Cashflow));


 


(iii)                               a reduction in the Margin or a reduction in the amount
of any payment of principal, interest, fees or commission payable;


 


(iv)                              an increase in or an extension of any Commitment;


 


(v)                                 a change to
the Borrowers or Guarantors other than in accordance with Clause 28 (Changes to the Obligors);


 


(vi)                              any provision which expressly requires the consent of all
the Lenders;


 


(vii)                           Clause 2.2
(Senior Finance Parties’ rights and
obligations), Clause 27 (Changes
to the Lenders), Clause 31 (Sharing
among the Senior Finance Parties) or this Clause 38;


 


(viii)                        the
amendment or waiver of provisions in this Agreement or in the Intercreditor
Agreement relating to the release of any Security over Charged Assets created
pursuant to any Security Document (except to the extent provided for in that
Security Document or this Agreement or as required in connection with any
Permitted Disposal);


 


(ix)                                a change in the ranking, subordination or priority of
all outstandings under the Senior Finance Documents as provided for in the
Intercreditor Agreement;


 


(x)                                   Clause 11.9 (Application of Proceeds) or any paragraph
of Clause 11.10 (Voluntary prepayment of
Term Loans and Capex Facility Loans) other than paragraph (a);


 


(xi)                                Clause 40
(Governing Law); or


 


(xii)                             Clause
25.28 (Scheme of Arrangement),


 


shall not be made without the prior consent of all
the Lenders.


 


160





















 


(b)                                 An amendment or
waiver which relates to the rights or obligations of the Agent, the Security
Trustee, the Issuing Bank, the Mandated Lead Arrangers, the Bookrunners or any
Ancillary Lender may not be effected without its consent.


 


(c)                                  Except where the
consent of all Lenders is required by any Senior Finance Document, an amendment
or waiver which relates solely to the rights or obligations of the Facility A
Lenders shall not be effective without the consent of the Majority Facility A
Lenders and shall not require the consent of any Facility B Lender, Facility C
Lender, Capex Facility Lender or Revolving Facility Lender.


 


(d)                                 Except where the
consent of all Lenders is required by any Senior Finance Document, an amendment
or waiver which relates solely to the rights and obligations of the Facility B
Lenders shall not be effective without the consent of the Majority Facility B
Lenders and shall not require the consent of any Facility A Lender, Facility C
Lender, Capex Facility Lender or Revolving Facility Lender.


 


(e)                                  Except where the
consent of all Lenders is required by any Senior Finance Document, an amendment
or waiver which relates solely to the rights or obligations of the Facility C
Lenders shall not be effective without the consent of the Majority Facility C
Lenders and shall not require the consent of any Facility A Lender, Facility B
Lender, Capex Facility Lender or Revolving Facility Lender.


 


(f)                                    Except where the consent
of all Lenders is required by any Senior Finance Document, an amendment or
waiver which relates solely to the rights or obligations of the Capex Facility
Lender shall not be effective without the consent of the Majority Capex
Facility Lender and shall not require the consent of any Facility A Lender,
Facility B Lender, Capex Facility Lender or Revolving Facility Lender.


 


(g)                                 Except where the
consent of all Lenders is required by any Senior Finance Document, an amendment
or waiver which relates solely to the rights or obligations of the Revolving
Facility Lenders shall not be effective without the consent of the Majority
Revolving Facility Lenders and shall not require the consent of any Facility A
Lender, Facility B Lender, Facility C Lender or Capex Facility Lender.


 


39.                                 COUNTERPARTS


 


Each
Senior Finance Document may be executed in any number of counterparts, and this
has the same effect as if the signatures on the counterparts were on a single
copy of the Senior Finance Document.


 


161





















 


SECTION 12


 


GOVERNING LAW AND ENFORCEMENT


 


40.                                 GOVERNING
LAW


 


This
Agreement is governed by English law.


 


41.                                 ENFORCEMENT


 


41.1                           Jurisdiction


 


(a)                                  The courts of England
have exclusive jurisdiction to settle any dispute arising out of or in
connection with this Agreement (including a dispute regarding the existence,
validity or termination of this Agreement) (a “Dispute”).


 


(b)                                 The Parties agree
that the courts of England are the most appropriate and convenient courts to
settle Disputes and accordingly no Party will argue to the contrary.


 


(c)                                  This Clause 41.1 is
for the benefit of the Senior Finance Parties only. As a result, no Senior
Finance Party shall be prevented from taking proceedings relating to a Dispute
in any other courts with jurisdiction. To the extent allowed by law, the Senior
Finance Parties may take concurrent proceedings in any number of jurisdictions.


 


41.2                           Service of process


 


Without
prejudice to any other mode of service allowed under any relevant law, each Obligor
(other than an Obligor incorporated in England and Wales):


 


(a)                                  irrevocably appoints
Newco as its agent for service of process in relation to any proceedings before
the English courts in connection with any Senior Finance Document; and


 


(b)                                 agrees that
failure by a process agent to notify the relevant Obligor of the process will
not invalidate the proceedings concerned.


 


THIS
AGREEMENT has been entered into on the date stated at the beginning of this
Agreement.


 


162





















 


SCHEDULE 1


 


THE ORIGINAL PARTIES


 


PART I


 


THE ORIGINAL OBLIGORS


 


 


	
  Name of
  Original Borrower

  	
   

  	
  Jurisdiction of incorporation

  	
   

  	
  Registration number (or

  equivalent, if any)

  	
   

  
	
  Facility A Borrower

  Newco

  	
   

  	
  England
  and Wales

  	
   

  	
  4886096

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facility B Borrower

  Newco

  	
   

  	
  England
  and Wales

  	
   

  	
  4886096

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facility C Borrower

  Newco

  	
   

  	
  England
  and Wales

  	
   

  	
  4886096

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Capex Facility Borrower

  Newco

  	
   

  	
  England
  and Wales

  	
   

  	
  4886096

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Revolving Facility Borrower

  Newco

  	
   

  	
  England
  and Wales

  	
   

  	
  4886096

  	
   

  



 


	
  Name of
  Original Guarantor

  	
   

  	
  Jurisdiction of incorporation

  	
   

  	
  Registration number (or equivalent, if any)

  	
   

  
	
  Newco

  	
   

  	
  England
  and Wales

  	
   

  	
  4886096

  	
   

  



 


163





















 


PART II


 


THE ORIGINAL LENDERS (OTHER
THAN UK NON-BANK LENDERS)


 


 


	
  Name
  of Original

  Lender

  	
   

  	
  Facility A

  Commitment

  	
   

  	
  Facility B

  Commitment

  	
   

  	
  Facility C

  Commitment

  	
   

  	
  Capex

  Facility

  Commitment

  	
   

  	
  Revolving

  Facility

  Commitment

  	
   

  
	
  Barclays Bank PLC

  	
   

  	
  $

  	
  133,333,334

  	
   

  	
  $

  	
  66,666,666

  	
   

  	
  $

  	
  66,666,666

  	
   

  	
  $

  	
  33,333,334

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
  Credit Suisse First Boston

  	
   

  	
  $

  	
  133,333,333

  	
   

  	
  $

  	
  66,666,667

  	
   

  	
  $

  	
  66,666,667

  	
   

  	
  $

  	
  33,333,333

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
  The Royal Bank of Scotland
  plc

  	
   

  	
  $

  	
  133,333,333

  	
   

  	
  $

  	
  66,666,667

  	
   

  	
  $

  	
  66,666,667

  	
   

  	
  $

  	
  33,333,333

  	
   

  	
  $

  	
  25,000,000

  	
   

  



 


164





















 


PART III


 


THE ORIGINAL LENDERS – UK
NON-BANK LENDERS


 


 


	
  Name
  of Original

  Lender

  	
   

  	
  Facility A

  Commitment

  	
   

  	
  Facility B

  Commitment

  	
   

  	
  Facility C

  Commitment

  	
   

  	
  Capex

  Facility

  Commitment

  	
   

  	
  Revolving

  Facility

  Commitment

  	
   

  
	
  -

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  



 


165





















 


SCHEDULE 2


 


CONDITIONS PRECEDENT


 


PART I


 


CONDITIONS PRECEDENT TO
SIGNING


 


1.                                       Original Obligors


 


(a)                                  A copy of the
constitutional documents of each Holdco and each Original Obligor which is not
a Holdco (if any).


 


(b)                                 A copy of a
resolution of the board of directors or equivalent body of each Holdco and each
Original Obligor which is not a Holdco (if any):


 


(i)                                     approving the terms
of, and the transactions contemplated by, the Transaction Documents (other than
the High Yield Notes Finance Documents) to which it is a party and resolving
that it execute the Transaction Documents (other than the High Yield Notes
Finance Documents) to which it is a party;


 


(ii)                                  authorising
a specified person or persons to execute the Transaction Documents (other than
the High Yield Notes 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
documents and notices (including, if relevant, any utilisation request and
selection notice) to be signed and/or despatched by it under or in connection
with the Transaction Documents (other than the High Yield Notes Finance
Documents) to which it is a party.


 


(c)                                  A specimen of the
signature of each person authorised by the resolution referred to in
paragraph (b) above.


 


(d)                                 A certificate of the
Company (signed by a director) confirming that borrowing or guaranteeing, as
appropriate, the Total Commitments would not cause any borrowing, guaranteeing
or similar limit binding on any Original Obligor to be exceeded.


 


(e)                                  A certificate of an
authorised signatory of each Holdco and each Original Obligor which is not a
Holdco (if any) (without personal liability) certifying that each copy document
relating to it specified in this Part I is correct, complete and in full force
and effect as at a date no earlier than the date of this Agreement.


 


2.                                       Security at signing


 


Confirmation
from the Security Trustee that it has received each of the following documents
in form and substance satisfactory to it:


 


(a)                                  an original
of Debenture 1 in the Agreed Form, duly executed and delivered by Newco and the
Security Trustee;


 


(b)                                 forms of notice of
charge or assignment of the Receiving Agent Account and the Overfunding
Account, in each case signed by Newco, as required by Debenture 1 and with
irrevocable authorisation to the Security Trustee to complete the account
details therein once such accounts have been opened; and


 


166





















 


(c)                                  the Agreed Form
of Debenture 2.


 


3.                                       lntercreditor
Agreement


 


An original of the lntercreditor Agreement in the Agreed Form, duly
executed by the parties to it.


 


4.                                       Other Original Senior Finance Documents


 


An
original of each of the following documents in the Agreed Form, duly executed
by the parties to it:


 


(a)                                  this
Agreement;


 


(b)                                 each Fee
Letter; and


 


(c)                                  the
Syndication Side Letter.


 


5.                                       Bridge Facility Finance Documents


 


(a)                                  A copy of the Bridge
Facility Agreement in the Agreed Form, duly executed by the parties to it.


 


(b)                                 Confirmation from the
Bridge Facility Agent that it has received each of the documents specified as
being conditions precedent to signing the Bridge Facility Agreement, except the
confirmation required by paragraph 4(b) of part I of schedule 2 (Conditions precedent) to the Bridge Facility Agreement.


 


6.                                       Investor Documents


 


Unexecuted
copies of the Shareholders’ Agreement and the Subordinated Preference
Certificates Instruments pursuant to which shares in the Company and
Subordinated Preference Certificates will be subscribed for by:


 


(a)                                  the Original
Investors set out in paragraphs (a) and (b) of the definition of Original
Investors in an amount equal to at least 15 per cent. of the peak funding
requirement for the Acquisition (including refinancing of Existing Debt but
excluding (i) the Revolving Facility and (ii) undrawn commitments under
existing Target Group bank facilities) (the “Total
Funding Requirement”) and for at least 50.1 per cent. of the voting shares in the Company (excluding any shares to
be issued under the Bridge Facility Warrant Instrument); and


 


(b)                                 the Original
Investors and Management in an amount equal to at least 30 per cent. of the Total Funding Requirement.


 


7.                                       Intra-Group Documents


 


(a)                                  A copy of the
Intercompany Loan Agreements in the Agreed Form;


 


(b)                                 A copy of the
Whitewash Intra-Group Loan Agreement in the Agreed Form; and


 


(c)                                  A copy of the Working
Capital Support Letter in the Agreed Form.


 


8.                                       Legal opinion


 


A
legal opinion of Linklaters, legal advisers to the Mandated Lead Arrangers, the
Bookrunners, the Security Trustee and the Agent in England, substantially in
the form distributed to the Original Lenders prior to signing this Agreement.


 


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9.                                       Scheme of Arrangement-related documentation


 


(a)                                  A copy of the draft
Press Release to be issued by or on behalf of Newco.


 


(b)                                 The Mandated Lead
Arrangers being satisfied that the Receiving Agent Letter has been executed and
delivered by Newco to the Receiving Agent.


 


10.                                 Financial
information and documentation


 


(a)                                  The Original
Financial Statements.


 


(b)                                 The Reports.


 


11.                                 Group
Structure Chart and Material Subsidiaries


 


A
copy of the Group Structure Chart and list of the Subsidiaries of the Target
which will, when the Target become a member of the
Group, be Material Subsidiaries.


 


12.                                 Know
Your Customer Requirements


 


Evidence
satisfactory to the Mandated Lead Arrangers that all applicable anti-money
laundering and “know your customer” laws and regulations relating to the
Original Investors set out in paragraphs (a) and (b) of the definition of
Original Investors and each Holdco have been complied with, including receipt
of the following documentation and confirmations in relation to the Original
Investors set out in paragraphs (a) and (b) of the definition of Original
Investors and each Holdco:


 


(a)                                  identification
acceptable to the Agent from two directors of the company (one containing photo
identification and one containing proof of address);


 


(b)                                 a letter
from the legal advisers to the company confirming:


 


(i)                                     the company’s
name;


 


(ii)                                  the company’s registered number;


 


(iii)                               the company’s registered office;


 


(iv)                              the company’s directors; and


 


(v)                                 the company’s
shareholding (names, number of shares, percentage shareholding);


 


(c)                                  evidence satisfactory
to the Agent of the link from each company referred to in paragraph (b) above
to the relevant Original Investors set out in the definition of paragraphs (a)
and (b) of the definition of Original Investors regulated by the Financial Services
Authority;


 


(d)                                 all other information
reasonably required by the Agent for the purposes of identification of the
Original Investors set out in paragraphs (a) and (b) of the definition of
Original Investors and each Holdco as may be required by the Agent in order for
it to comply with its (or any Lenders’) “Know Your Client” procedures or in
order to comply with any United Kingdom money laundering regulations.


 


168





















 


PART II


 


CONDITIONS PRECEDENT TO
INITIAL UTILISATION


 


 


1.                                       Regulatory Authorisations


 


Copies
of any regulatory, competition or anti-trust Authorisations required in
connection with the Acquisition.


 


2.                                       Investor funding


 


Copies
of the duly executed Shareholders’ Agreement, the Intercompany Loan Agreements
and the Subordinated Preference Certificates Instruments and confirmation that
the Company has received the amounts referred to in paragraph 6 (Investor Documents) of part I of Schedule
2 (Conditions precedent to signing)
and has contributed or on-lent the same to Newco.


 


3.                                       Bridge Facility proceeds


 


Confirmation that Newco has received the full amount of the Bridge
Facility (being $365,000,000) or evidence that Newco will receive the same on
the date of First Utilisation of the Facilities.


 


4.                                       Fees


 


Evidence
that all fees, costs and expenses due or to become due and payable by the
Company on or before the date of first Utilisation of the Term Facilities
pursuant to Clause 15 (Fees) and
Clause 20 (Costs and expenses)
have been paid or, in the case of costs and expenses only, will be paid within
3 Business Days of that date.


 


5.                                       Offer documents


 


(a)                                  A copy of the Press
Release in the Agreed Form to be issued by or on behalf of Newco.


 


(b)                                 A copy of the Offer
Circular (including the recommendation of the independent directors of the
Target in respect of the Acquisition), in a form which complies with the Press
Release in all material respects.


 


6.                                       Approval of the Scheme of Arrangement


 


An office copy of the order of the High Court of Justice of England and
Wales sanctioning the Scheme of Arrangement and evidence that such order has
been registered with the Registrar of Companies of England and Wales.


 


7.                                       Funds Flow Memorandum


 


The
Funds Flow Memorandum (containing a summary of the Acquisition Costs).


 


8.                                       Receiving Agent Acknowledgement


 


A copy of the acknowledgement from the Receiving Agent that it has
received the Receiving Agent Letter and has acknowledged it and is bound by its
terms.


 


169





















 


PART III


 


CONDITIONS PRECEDENT REQUIRED
TO BE


 


DELIVERED BY AN ADDITIONAL
OBLIGOR


 


1.                                       Additional Obligors


 


(a)                                  An Accession Letter
and an Accession Deed (as defined in and pursuant to the Intercreditor
Agreement), in each case duly executed by the Additional Obligor and the
Company.


 


(b)                                 A copy of the
constitutional documents of the Additional Obligor.


 


(c)                                  A copy of a
resolution of the board of directors of the Additional Obligor:


 


(i)                                     approving the terms
of, and the transactions contemplated by, the Accession Letter and each Senior
Finance Document to which it is a party and resolving that it execute the
Accession Letter and each Senior Finance Document to which it is a party;


 


(ii)                                  authorising
a specified person or persons to execute the Accession Letter and each Senior
Finance Document 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 other
documents and notices (including, in relation to an Additional Borrower, any
Utilisation Request or Selection Notice) to be signed and/or despatched by it
under or in connection with the Senior Finance Documents to which it is a
party.


 


(d)                                 A specimen of the
signature of each person authorised by the resolution referred to in
paragraph (c) above.


 


(e)                                  In the case of an
Additional Guarantor incorporated in England and Wales or if so required by the
Agent, a copy of a resolution signed by all the holders of the issued shares of
the Additional Guarantor, approving the terms of, and the transactions contemplated
by, the Senior Finance Documents to which the Additional Guarantor is a party.


 


(f)                                    A certificate of the
Additional Obligor (signed by a director) confirming that borrowing or
guaranteeing, as appropriate, the Total Commitments would not cause any borrowing,
guaranteeing or similar limit binding on it to be exceeded.


 


(g)                                 A certificate of an
authorised signatory of the Additional Obligor certifying that each copy
document listed in this Part III is correct, complete and in full force and
effect as at a date no earlier than the date of the Accession Letter.


 


2.                                       Debenture 2


 


Confirmation
from the Security Trustee that it has received each of the following documents
in form and substance satisfactory to it:


 


(a)                                  An original of
Debenture 2 in the Agreed Form, duly executed and delivered by each Additional
Obligor and the Security Trustee.


 


(b)                                 All title deeds and
documents relating to Mortgaged Property (if any) over which legal mortgages
are expressed to be created by Debenture 2.


 


170





















 


(c)                                  The share
certificates (and blank executed stock transfer forms or equivalent means of
transferring the shares) in relation to all shares over which Security is
expressed to be created by Debenture 2.


 


(d)                                 Notices of charge or
assignment of lnsurances and Assigned Agreements signed by each Additional
Obligor and an acknowledgement of each such Notice signed by the person to whom
that Notice was addressed, all as required by Debenture 2.


 


(e)                                  Deeds of release in
relation to existing security and guarantees of each Additional Obligor not
falling within Permitted Security or Permitted Guarantees, as relevant, in form
and substance satisfactory to the Security Trustee (acting reasonably).


 


(f)                                    The constitutive
documents of any member of the Group whose shares are subject to Security under
any of the Security Documents referred to above in the form required by the
Security Trustee together with any resolutions of the shareholders of such
member of the Group adopting such changes to the constitutive documents of such
member of the Group as the Security Trustee shall have reasonably required to,
among other things, remove any restriction on any transfer of shares or
partnership interests (or equivalent) in such member of the Group pursuant to
any enforcement of any such Security Documents, to the extent legally possible.


 


(g)                                 All other
documentation, and/or evidence of all other steps, required to perfect
Debenture 2 as advised to the Security Trustee by its legal advisers in
England and Wales.


 


In
this paragraph 2, the terms “Assigned Agreement”, “Bank Account”, “Investment”
and “Mortgaged Property” have the meanings given to them in Debenture 2.


 


3.                                       Financial assistance


 


In
relation to the granting of a guarantee of, and Security for, all the
obligations of the Obligors under the Finance Documents, in respect of any
Additional Obligor which is a member of the Acquired Group that is incorporated
in England and Wales, evidence of compliance by that Additional Obligor with
the procedures set out in Sections 155 to 158 of the Companies Act 1985 for
permitting the financial assistance constituted by this Agreement and/or under
the other Senior Finance Documents to which it is a party and/or under any
intercompany loan agreements required to enable loans to be made from that
Additional Obligor to other members of the Group to enable funding of payments
due under the Senior Finance Documents, including:


 


(a)                                  certified copies of
the relevant directors’ statutory declarations and auditors’ reports;


 


(b)                                 a letter from the
auditors addressed to the Senior Finance Parties for the purpose of section
155(2) of the Companies Act 1985 substantially in the form set out in Technical
Release FRAG 26/94 issued in September 1994 by the Council of the Institute of
Chartered Accountants in England and Wales;


 


(c)                                  confirmation that the
relevant directors’ statutory declarations have been filed at Companies House;
and


 


171





















 


(d)                                 in relation
to the Target, a certificate of re-registration as a private limited company
from the Registrar at Companies House.


 


4.                                       Authorisations


 


A
copy of any other Authorisation or other document, opinion or assurance which
the Agent (acting reasonably) considers to be necessary in connection with the
entry into and performance of the transactions contemplated by the Accession
Letter or for the validity and enforceability of any Senior Finance Document.


 


5.                                       Financial statements


 


If
available, the latest audited financial statements of the Additional Obligor.


 


6.                                       Legal opinions


 


(a)                                  A legal opinion of
Linklaters, legal advisers to the Mandated Lead Arrangers, the Bookrunners, the
Security Trustee and the Agent in England.


 


(b)                                 If the Additional
Obligor is incorporated in a jurisdiction other than England and Wales, a legal
opinion of the legal advisers to the Mandated Lead Arrangers, the Bookrunners,
the Security Trustee and the Agent in the jurisdiction in which the Additional
Obligor is incorporated.


 


7.                                       Appointment of agent for service of process


 


If
the proposed Additional Obligor is incorporated in a jurisdiction other than
England and Wales, evidence that the process agent specified in Clause 41.2 (Service of process), if not an Obligor,
has accepted its appointment in relation to the proposed Additional Obligor.


 


8.                                       Know Your Customer Requirements


 


Evidence
satisfactory to the Mandated Lead Arrangers that all applicable anti-money
laundering and “know your customer” laws and regulations relating to the
Additional Obligor have been complied with, including receipt of the following
documentation and confirmations in relation to each Additional Obligor:


 


(a)                                  identification
acceptable to the Agent from two directors of the company (one containing photo
identification and one containing proof of address);


 


(b)                                 a letter
from the legal advisers to the company confirming:


 


(i)                                     the company’s
name;


 


(ii)                                  the company’s registered number;


 


(iii)                               the company’s registered office;


 


(iv)                              the company’s directors; and


 


(v)                                 the company’s
shareholding (names, number of shares, percentage shareholding);


 


(c)                                  evidence
satisfactory to the Agent of the link from each company referred to in
paragraph (b) above to the relevant Investor regulated by the Financial
Services Authority;


 


172





















 


all
other information required by the Agent for the purposes of identification of
each Additional Obligor as may be required by the Agent in order for it to
comply with its (or any Lenders’) “Know Your Client” procedures or in order to
comply with any United Kingdom money laundering regulations.


 


173





















 


SCHEDULE 3


 


REQUESTS


 


PART I


 


UTILISATION REQUEST


 


LOANS


 


From:
               [Specify Borrower]


 


To:                              [•]


 


Dated:


 


Dear
Sirs


 


Duchessgrove Limited and Grapeclose
Limited – $975,000,000 Senior Facility Agreement


dated [•] (the “Agreement”)


 


1.                                       We refer
to the Agreement. This is a Utilisation Request. Terms
defined in the Agreement have the same meaning in this Utilisation Request
unless given a different meaning in this Utilisation Request.


 


2.                                       We wish to
borrow a Loan on the following terms:


 


	
  Proposed
  Utilisation Date:

  	
  [                   ]
  (or, if that is not a Business Day, the next Business Day)

  
	
   

  	
   

  
	
  Facility
  to be utilised:

  	
  [Facility
  A]/[Facility B]/[Facility C]/[Capex Facility] [Revolving Facility]

  
	
   

  	
   

  
	
   

  	
  [The
  Loan will be a Refinancing Utilisation.]

  
	
   

  	
   

  
	
  Currency
  of Loan:

  	
  [                   ]

  
	
   

  	
   

  
	
  Amount:

  	
  [                   ]
  or, if less, the Available Facility

  
	
   

  	
   

  
	
  Interest
  Period:

  	
  [                   ]

  
	
   

  	
   

  
	
  Account
  Details:

  	
  [                   ]

  



 


3.                                       [We
confirm that each condition specified in Clause 4.2 (Further conditions precedent) is satisfied on the date of
this Utilisation Request.]*


 


4.                                       The
proceeds of this Loan should be credited to [account].


 


5.                                       This
Utilisation Request is irrevocable.


 


 


	
  Yours
  faithfully

  
	
   

  
	
   

  
	
   

  	
   

  



 










•                  Delete for
Scheme of Arrangement Utilisation


•                  Delete if
not applicable


 


174





















 


authorised signatory for


[name of relevant Borrower]


 


175





















 


PART II


 


UTILISATION REQUEST


 


LETTERS OF CREDIT/BANK
GUARANTEES


 


From:
               [specify Borrower]


 


To:                              [•]


 


Dated:


 


Dear
Sirs


 


Duchessgrove Limited and
Grapeclose Limited – $975,000,000 Senior Facility Agreement


dated [•] (the “Agreement”)


 


1.                                       We refer
to the Agreement. This is a Utilisation Request. Terms
defined in the Agreement have the same meaning in this Utilisation Request
unless given a different meaning in this Utilisation Request.


 


2.                                       We wish to
arrange for a [Letter of Credit/Bank Guarantee] to be issued by the Issuing
Bank on the following terms:


 


	
  Proposed
  Utilisation Date:

  	
  [                   ]
  (or, if that is not a Business Day, the next Business Day)

  
	
   

  	
   

  
	
  Facility
  to be utilised:

  	
  Revolving
  Facility

  
	
   

  	
   

  
	
  Amount:

  	
  [                   ]
  or, if less, the Available Facility

  
	
   

  	
   

  
	
  Currency:

  	
  [                   ]

  
	
   

  	
   

  
	
  Interest
  Period:

  	
  [                   ]

  



 


3.                                       [We
confirm that each condition specified in Clause 6.6 (Issue of Letters of Credit or Bank Guarantees) is satisfied
on the date of this Utilisation Request.]


 


4.                                       We attach
a copy of the proposed [Letter of Credit/Bank Guarantee]. [Insert delivery
instructions]


 


5.                                       This
Utilisation Request is irrevocable.


 


 


	
  Yours
  faithfully

  
	
   

  
	
   

  
	
   

  	
   

  



authorised signatory for


[name of relevant Borrower]


 


176





















 


PART III


 


SELECTION NOTICE


 


APPLICABLE TO A TERM LOAN


 


From:
               [specify Borrower]


 


To:                              [•]


 


Dated:


 


Dear
Sirs


 


Duchessgrove Limited and
Grapeclose Limited – $975,000,000 Senior Facility Agreement


dated [•] (the “Agreement”)


 


1.                                       We refer
to the Agreement. This is a Selection Notice. Terms defined in the Agreement
have the same meaning in this Selection Notice unless given a different meaning
in this Selection Notice.


 


2.                                       We refer to
the following [Capex] Facility [A/B/C] Loan[s] in [sterling] [euro] with an
Interest Period ending on [                   ].*


 


3.                                       [We
request that the above [Capex] Facility [A/B/C] Loan[s] be divided into
[                   ]
[Capex] Facility [A/B/C] Loans with the following amounts and Interest Periods:]**


 


or


 


[We
request that the next Interest Period for the above [Capex] Facility [A/B/C]
Loan[s] is
[                   ].***


 


4.                                       This
Selection Notice is irrevocable.


 


 


	
  Yours
  faithfully

  
	
   

  
	
   

  
	
   

  	
   

  
	
  authorised
  signatory for

  
	
  [the
  Company on behalf of]

  
	
  [name of relevant Borrower]

  



 










*                                         Insert details of all Term Loans which have an Interest
Period ending on the same date.


 


**                                  Use this option if division of Loans is requested.


 


***                           Use this option if sub-division is not required.


 


177





















 


PART IV


 


ANCILLARY FACILITY REQUEST


 


From:
               [specify Borrower]


 


To:                              [•]


 


Dated:


 


Dear
Sirs


 


Duchessgrove Limited and
Grapeclose Limited – $975,000,000 Senior Facility Agreement


dated [•] (the “Agreement”)


 


1.                                       We refer
to the Agreement. This is an Ancillary Facility Request. Terms defined in the
Agreement have the same meaning in this Ancillary Facility Request unless given
a different meaning in this Ancillary Facility Request.


 


2.                                       We wish to
establish an Ancillary Facility on the following terms:


 


Proposed
Borrower:                                      [                   ]


 


Proposed
Ancillary Lender:
[                   ]


 


Type
or types of facility:
[                   ]


 


Commencement
Date:
[                   ]


 


Expiry
Date:
[                   ]


 


Ancillary
Commitment amount:
[                   ]


 


Currency/ies
available:
[                   ]


 


[Other
details required by the Agent:]
[                   ]


 


3.                                       We confirm
that each condition specified in paragraphs (a) and (b) of Clause 9.4 (Grant of Ancillary Facility) is satisfied
on the date of this Ancillary Facility Request.


 


 


	
  Yours
  faithfully

  
	
   

  
	
   

  
	
   

  	
   

  
	
  authorised
  signatory for

  
	
  [name of Company]

  



 


178


















 


SCHEDULE 4


 


MANDATORY
COST FORMULAE


 


1.                                       The
Mandatory Cost is an addition to the interest rate to compensate Lenders for
the cost of compliance with (a) the requirements of the Bank of England and/or
the Financial Services Authority (or, in either case, any other authority which
replaces all or any of its functions) or (b) the requirements of the
European Central Bank.


 


2.                                       On the
first day of each Interest Period (or as soon as possible thereafter) the Agent
shall calculate, as a percentage rate, a rate (the “Additional Cost Rate”) for each Lender, in accordance with the
paragraphs set out below. The Mandatory Cost will be the Lenders’ Additional
Cost Rates supplied by each Lender and will be expressed as a percentage rate
per annum.


 


3.                                       The
Additional Cost Rate for any Lender lending from a Facility Office in a
Participating Member State will be the percentage notified by that Lender to
the Agent. This percentage will be certified by that Lender in its notice to
the Agent to be its reasonable determination of the cost (expressed as a
percentage of that Lender’s participation in all Loans made from that Facility
Office) of complying with the minimum reserve requirements of the European
Central Bank in respect of loans made from that Facility Office.


 


4.                                       The Additional
Cost Rate for any Lender lending from a Facility Office in the United Kingdom
will be calculated by the Agent as follows:


 


(a)                                  in
relation to a sterling Loan:


 


	
  AB + C(B–D) + E x 0.01

  	
   per cent. per annum

  
	
  100 – (A + C)

  



 


(b)                                 in
relation to a Loan in any currency other than sterling:


 


	
  E x 0.01

  	
   per cent. per annum

  
	
  300

  



Where:


 


A                                      is the
percentage of Eligible Liabilities (assuming these to be in excess of any
stated minimum) which that Lender is from time to time required to maintain as
an interest-free cash ratio deposit with the Bank of England to comply with
cash ratio requirements.


 


B                                        is the
percentage rate of interest (excluding the Margin and the Mandatory Cost and,
if the Loan is an Unpaid Sum, the additional rate of interest specified in paragraph
(a) of Clause 12.3 (Default interest))
payable for the relevant Interest Period on the Loan.


 


C                                        is the
percentage (if any) of Eligible Liabilities which that Lender is required from
time to time to maintain as interest bearing Special Deposits with the Bank of
England.


 


D                                       is the
percentage rate per annum payable by the Bank of England to the Agent on
interest bearing Special Deposits.


 


179





















 


E                                         is
designed to compensate Lenders for amounts payable under the Fees Rules and is
calculated by the Agent as being the average of the most recent rates of charge
supplied by the Reference Banks to the Agent pursuant to paragraph 7 below and
expressed in pounds per £1,000,000.


 


5.                                       For the
purposes of this Schedule:


 


(a)                                  “Eligible Liabilities” and “Special
Deposits” have the meanings given to them from time to time under or
pursuant to the Bank of England Act 1998 or (as may be appropriate) by the Bank
of England;


 


(b)                                 “Fees Rules” means the rules on periodic fees contained in
the FSA Supervision Manual or such other law or regulation as may be in force
from time to time in respect of the payment of fees for the acceptance of
deposits;


 


(c)                                  “Fee Tariffs” means the fee tariffs specified in the Fees
Rules under the activity group A.1 Deposit acceptors (ignoring any minimum fee
or zero rated fee required pursuant to the Fees Rules but taking into account
any applicable discount rate); and


 


(d)                                 “Tariff Base” has the meaning given to it in, and will be
calculated in accordance with, the Fees Rules.


 


6.                                       In
application of the above formulae, A, B, C and D will be included in the
formulae as percentages (i.e. 5 per cent. will be included in the formula as 5
and not as 0.05). A negative result obtained by subtracting D from B shall be
taken as zero. The resulting figures shall be rounded to 4 decimal places.


 


7.                                       If
requested by the Agent, each Reference Bank shall, as soon as practicable after
publication by the Financial Services Authority, supply to the Agent the rate
of charge payable by that Reference Bank to the Financial Services Authority
pursuant to the Fees Rules in respect of the relevant financial year of the
Financial Services Authority (calculated for this purpose by that Reference
Bank as being the average of the Fee Tariffs applicable to that Reference Bank
for that financial year) and expressed in pounds per £1,000,000 of the Tariff
Base of that Reference Bank.


 


8.                                       Each
Lender shall supply any information required by the Agent for the purpose of
calculating its Additional Cost Rate. In particular, but without limitation,
each Lender shall supply the following information on or prior to the date on
which it becomes a Lender:


 


(a)                                  the
jurisdiction of its Facility Office; and


 


(b)                                 any other
information that the Agent may reasonably require for such purpose.


 


Each Lender shall promptly
notify the Agent of any change to the information provided by it pursuant to
this paragraph.


 


9.                                       The
percentages of each Lender for the purpose of A and C above and the rates of
charge of each Reference Bank for the purpose of E above shall be determined by
the Agent based upon the information supplied to it pursuant to paragraphs 7
and 8 above and on the assumption that, unless a Lender notifies the Agent to
the contrary, each Lender’s obligations in relation to cash ratio deposits and
Special Deposits are the same as those of a typical bank from its jurisdiction
of incorporation with a Facility Office in the same jurisdiction as its
Facility Office.


 


180





















 


10.                                 The Agent
shall have no liability to any person if such determination results in an
Additional Cost Rate which over or under compensates any Lender and shall be
entitled to assume that the information provided by any Lender or Reference
Bank pursuant to paragraphs 3, 7 and 8 above is true and correct in all
respects.


 


11.                                 The Agent
shall distribute the additional amounts received as a result of the Mandatory
Cost to the Lenders on the basis of the Additional Cost Rate for each Lender based
on the information provided by each Lender and each Reference Bank pursuant to
paragraphs 3, 7 and 8 above.


 


12.                                 Any
determination by the Agent pursuant to this Schedule in relation to a formula,
the Mandatory Cost, an Additional Cost Rate or any amount payable to a Lender
shall, in the absence of manifest error, be conclusive and binding on all
Parties.


 


13.                                 The Agent
may from time to time, after consultation with the Company and the Lenders,
determine and notify to all Parties any amendments which are required to be
made to this Schedule in order to comply with any change in law, regulation or
any requirements from time to time imposed by the Bank of England, the
Financial Services Authority or the European Central Bank (or, in any case, any
other authority which replaces all or any of its functions) and any such
determination shall, in the absence of manifest error, be conclusive and
binding on all Parties.


 


181





















 


SCHEDULE 5


 


FORM OF TRANSFER CERTIFICATE


 


	
  To:

  	
   

  	
  [•] as Agent

  
	
   

  	
   

  	
   

  
	
  From:

  	
   

  	
  [The
  Existing Lender] (the “Existing Lender”)
  and [The New Lender] (the “New Lender”)

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  



 


Duchessgrove Limited and
Grapeclose Limited – $975,000,000
Senior Facility Agreement

dated [•] (the “Agreement”)


 


1.                                       We refer
to the Agreement. This is a Transfer Certificate. Terms defined in the
Agreement have the same meaning in this Transfer Certificate unless given a
different meaning in this Transfer Certificate.


 


2.                                       We refer
to Clause 27.5 (Procedure for transfer):


 


(a)                                  The
Existing Lender and the New Lender agree to the Existing Lender transferring to
the New Lender by novation all or part of the Existing Lender’s Commitment,
rights and obligations referred to in the Schedule in accordance with Clause
27.5 (Procedure for transfer).


 


(b)                                 The
proposed Transfer Date is
[                   ].


 


(c)                                  The
Facility Office and address, fax number and attention details for notices of
the New Lender for the purposes of Clause 34.2 (Addresses) are set out in the Schedule.


 


(d)                                 The New
Lender agrees to be bound by the terms of the lntercreditor Agreement as a
[Lender].


 


3.                                       The New
Lender expressly acknowledges the limitations on the Existing Lender’s
obligations set out in paragraph (c) of Clause 27.4 (Limitation
of responsibility of Existing Lenders).


 


4.                                       [The New
Lender confirms that the person beneficially entitled to interest payable to
that Lender in respect of an advance under a Senior Finance Document is either:


 


(i)                                     a company
resident in the United Kingdom, or a partnership each member of which is a
company resident in the United Kingdom, for United Kingdom tax purposes; or


 


(ii)                                  a company
not so resident in the United Kingdom which carries on a trade in the United
Kingdom through a branch or agency and interest payable in respect of an
advance under a Senior Finance Document falls to be brought into account in
computing the chargeable profits of that company for the purposes of section
11(2) of the Taxes Act.]*


 


5.                                       This
Transfer Certificate may be executed in any number of counterparts and this has
the same effect as if the signatures on the counterparts were on a single copy
of this Transfer Certificate.


 


6.                                       This
Transfer Certificate is governed by English law.


 










*                                         Include if New Lender comes within paragraph (ii) of
the definition of Qualifying Lender in Clause 16.1 (Definitions)


 


182





















 


THE SCHEDULE


 


Commitment/rights and
obligations to be transferred


 


[insert relevant details]


 


[Facility Office address, fax
number and attention details for notices and account details for payments.]


 




	
  [Existing
  Lender]

  	
  [New
  Lender]

  	 

	 
	
   

  	
   

  
	 
	
  By:

  	
  By:

  
					






 


This
Transfer Certificate is accepted by the Agent and the Transfer Date is
confirmed as


 


[                   ].


 


[•]


 


By:


 


183





















 


SCHEDULE 6


 


FORM OF ACCESSION LETTER


 




	
  To:

  	
  [•] as Agent

  	 

	
   

  	
   

  	 

	 
	
  From:

  	
  [Subsidiary] and [Company]

  
					






 


Dated:


 


Dear
Sirs


 


Duchessgrove Limited and
Grapeclose Limited – $975,000,000
Senior Facility Agreement

dated [•] (the “Agreement”)


 


1.                                       We refer
to the Agreement. This is an Accession Letter. Terms defined in the Agreement
have the same meaning in this Accession Letter unless given a different meaning
in this Accession Letter.


 


2.                                       [Subsidiary]
agrees:


 


(a)                                  to become
an Additional [Borrower] [under [the Revolving][each] Facility [A/B/C]/[the
Capex Facility] [and an Additional]/[Guarantor] and to be bound by the terms of
the Agreement as an Additional [Borrower]/[and as an Additional][Guarantor]
pursuant to [Clause 28.2 (Additional
Borrowers)] [and] [Clause 28.3 (Additional
Guarantors)] of the Agreement; and


 


(b)                                 to be
bound by the terms of the lntercreditor Agreement as an [Additional Borrower]
[and] [Additional Guarantor].


 


[Subsidiary] is a company duly incorporated
under the laws of [name of relevant
jurisdiction].


 


3.                                       [Subsidiary’s]
administrative details are as follows:


 


Address:


 


Fax
No:


 


Attention:


 


4.                                       This
Accession Letter is governed by English law.


 


[This
Guarantor Accession Letter is entered into by deed.]


 


	
  [Company]

  	
  [Subsidiary].

  



 


184





















 


SCHEDULE 7


 


FORM OF COMPLIANCE CERTIFICATE


 


	
  To:

  	
  [•] as Agent

  
	
   

  	
   

  
	
  From:

  	
  [Company]

  
	
   

  	
   

  
	
  Dated:

  	
   

  



 


Dear
Sirs


 


Duchessgrove Limited and
Grapeclose Limited – $975,000,000
Senior Facility Agreement

dated [•] (the “Agreement”)


 


1.                                       We refer
to the Agreement. This is a Compliance Certificate. Terms defined in the
Agreement have the same meaning when used in this Compliance Certificate unless
given a different meaning in this Compliance Certificate.


 


2.                                       We confirm
that:


 


(a)                                  the ratio
of EBITDA to Total Net Interest Payable for the Testing Period ended on
[                   ]
(the “Test Date”) was
[                   ]
to 1;


 


(b)                                 the ratio
of Total Net Debt on the Test Date to EBITDA for that Testing Period was
[                   ]
to 1;


 


(c)                                  the ratio
of Senior Net Debt on the Test Date to EBITDA for that Testing Period was
[                   ]
to 1;


 


(d)                                 the ratio
of Cashflow to Net Debt Service for that Testing Period was
[                   ]
to 1;


 


(e)                                  I4 Capex
for [insert relevant period] was
$[                   ]; (1)


 


(f)                                    Other
Capex for [insert relevant period] was
$[                   ]


 


3.                                       [We
confirm that the Material Subsidiaries are:


 


(a)                                  [                   ];


 


(b)                                 [                   ];
and


 


(c)                                  [                   ].]


 


[We confirm that no Default is continuing.](2)


 


	
  Signed:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Director

  	
  Director

  
	
   

  	
   

  
	
  of

  	
  of

  
	
   

  	
   

  
	
  [Company]

  	
  [Company]

  



 










(1)               For Compliance Certificates in relation to Testing
Periods ending on 31 December only.


 


(2)               If this statement cannot be made, the certificate
should identify any Default that is continuing and the steps, if any, being
taken to remedy it.


 


185





















 


[insert applicable certification language]


 


 


	
   

  	
   

  	
   

  
	
  for
  and on behalf of

  [name of auditors of the Company]

  	
   

  



 


186





















 


SCHEDULE 8


 


TIMETABLES


 


PART I


 


LOANS


 


“D -
” refers to the number of Business Days before the relevant Utilisation
Date/the first day of the relevant Interest Period.


 


	
   

  	
   

  	
  Loans in

  sterling

  	
   

  	
  Loans in other

  currencies

  	
   

  
	
  Request for approval as an Optional Currency, if required (Clause 4.3 (Conditions relating to Optional Currencies))

  	
   

  	
  N/A

  	
   

  	
  D - 5 

  10:00 a.m.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Agent notifies the Lenders of the request (Clause 4.3 (Conditions relating
  to Optional Currencies))

  	
   

  	
  N/A

  	
   

  	
  D - 5

  3:00 p.m.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Responses by Lenders to the request (Clause 4.3 (Conditions relating
  to Optional Currencies))

  	
   

  	
  N/A

  	
   

  	
  D - 4

  1:00 p.m.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Agent notifies the Company if a currency is approved as an Optional
  Currency in accordance with Clause 4.3 (Conditions relating to Optional Currencies)

  	
   

  	
  N/A

  	
   

  	
  D - 4

  5:00 p.m.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery
  of a Utilisation Request)) or
  a Selection Notice (Clause 13.1 (Selection of Interest Periods))

  	
   

  	
  D - 1

  10:00 a.m.

  	
   

  	
  D - 3

  10:00 a.m.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Agent determines (in relation to a Utilisation) the
  Base Currency Amount of the Loan, if required under Clause 5.4 (Lenders’
  participation in a Loan) and notifies the Lenders of the
  Loan in accordance with Clause 5.4 (Lenders’ participation in a Loan)

  	
   

  	
  D - 1

  11:00 a.m.

  	
   

  	
  D - 3

  11:00 a.m.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR or EURIBOR is fixed

  	
   

  	
  Quotation Day

  as of 11:00 a.m.

  	
   

  	
  Quotation Day

  as of 11:00 a.m.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Agent receives a notification from a Lender under Clause 8.2

  (Unavailability of a currency)

  	
   

  	
  Quotation Day

  3:00 p.m.

  	
   

  	
  Quotation Day

  3:00 p.m.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Agent gives notice in accordance with Clause 8.2

  (Unavailability of a currency)

  	
   

  	
  Quotation Day

  5:00 p.m.

  	
   

  	
  Quotation Day

  5:00 p.m.

  	
   

  



 


187





















 


PART II


 


LETTERS OF CREDIT OR BANK
GUARANTEES


 


“D -
” refers to the number of Business Days before the relevant Utilisation Date.


 


	
  Delivery
  of a duly completed Utilisation Request (Clause 6.3 (Delivery of a Utilisation Request for Letter of
  Credit or Bank Guarantee))

  	
   

  	
  D –
  4

  11:00a.m.

  
	
   

  	
   

  	
   

  
	
  Agent
  determines (in relation to a Utilisation) the Base Currency Amount of the
  Letter of Credit or Bank Guarantee, if required under Clause 6.6 (Issue of Letters of Credit or Bank Guarantees)
  and notifies the Issuing Bank and the Lenders of the Letter of Credit or Bank
  Guarantee in accordance with Clause 6.6 (Issue
  of Letters of Credit or Bank Guarantees) 

  	
   

  	
  D –
  4

  12:00p.m.

  

  D – 3

  2:00p.m.

  
	
   

  	
   

  	
   

  
	
  Delivery
  of a duly completed Renewal Request (Clause 6.7 (Renewal of a Letter of Credit or Bank Guarantee)) 

  	
   

  	
  D –
  4

  12:00p.m.

  



 


188





















 


SCHEDULE 9


 


FORM OF LETTER OF CREDIT


 


	
  To:

  	
   

  	
  [Beneficiary]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (the “Beneficiary”)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Date]

  



Irrevocable Standby Letter of
Credit
no.[                   ]


 


At
the request of
[                   ],
[Issuing Bank] (the “Issuing Bank”) issues this irrevocable
standby letter of credit (“Letter of Credit”)
in your favour on the following terms and conditions:


 


1.                                       Definitions


 


In
this Letter of Credit:


 


“Business Day” means a day (other than a
Saturday or a Sunday) on which banks are open for general business in
[London].(3)


 


“Demand” means a demand for a payment under
this Letter of Credit in the form of the schedule to this Letter of Credit.


 


“Expiry Date” means
[                   ].


 


“Total L/C Amount” means
[                   ].


 


2.                                       Issuing Bank’s agreement


 


(a)                                  The Beneficiary may
request a drawing or drawings under this Letter of Credit by giving to the Issuing
Bank a duly completed Demand. A Demand must be received by the Issuing Bank by
[                   ]p.m.
([London] time) on the Expiry Date.


 


(b)                                 Subject to the terms
of this Letter of Credit, the Issuing Bank unconditionally and irrevocably
undertakes to the Beneficiary that, within [10] Business Days of receipt by it
of a Demand, it must pay to the Beneficiary the amount demanded in that Demand.


 


(c)                                  The Issuing Bank will
not be obliged to make a payment under this Letter of Credit if as a result the
aggregate of all payments made by it under this Letter of Credit would exceed
the Total L/C Amount.


 


3.                                       Expiry


 


(a)                                  The Issuing Bank will
be released from its obligations under this Letter of Credit on the date (if
any) notified by the Beneficiary to the Issuing Bank as the date upon which the
obligations of the Issuing Bank under this Letter of Credit are released.


 


(b)                                 Unless previously
released under paragraph (a) above, on
[                   ]p.m.
([London] time) on the Expiry Date the obligations of the Issuing Bank under
this Letter of Credit will cease with no further liability on the part of the
Issuing Bank except for any Demand validly presented under the Letter of Credit
that remains unpaid.


 










(3)                               This may need to be amended depending
on the currency of payment under the Letter of Credit.


 


189





















 


(c)                                  When the Issuing Bank
is no longer under any further obligations under this Letter of Credit, the
Beneficiary must return the original of this Letter of Credit to the Issuing
Bank.


 


4.                                       Payments


 


All
payments under this Letter of Credit shall be made in
[                   ]
and for value on the due date to the account of the Beneficiary specified in the
Demand.


 


5.                                       Delivery of demand


 


Each
Demand shall be in writing, and, unless otherwise stated, may be made by letter
or fax and must be received in legible form by the Issuing Bank at its address
and by the particular department or officer (if any) as follows:


[


[                   ]]


 


6.                                       Assignment


 


The
Beneficiary’s rights under this Letter of Credit may not be assigned or
transferred.


 


7.                                       UCP


 


Except
to the extent it is inconsistent with the express terms of this Letter of
Credit, this Letter of Credit is subject to the Uniform Customs and Practice
for Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500.


 


8.                                       Governing law


 


This
Letter of Credit is governed by English law.


 


9.                                       Jurisdiction


 


The
courts of England have exclusive jurisdiction to settle any dispute arising out
of or in connection with this Letter of Credit.


 


Yours
faithfully


 


 


[Issuing Bank]


 


By:


 


190





















 


SCHEDULE TO LETTER OF CREDIT


 


FORM OF DEMAND


 




	
  To:

  	
  [Issuing Bank]

  






 


[Date]


Dear
Sirs


 


Standby Letter of Credit no.
[                   ]
issued in favour of [BENEFICIARY] (the “Letter of Credit”)


 


We
refer to the Letter of Credit. Terms defined in the Letter of Credit have the
same meaning when used in this Demand.


 


1.                                       We certify
that the sum of
[                   ]
is due [and has remained unpaid for at least
[                   ]
Business Days] [under [set out underlying contract or agreement]]. We therefore
demand payment of the sum of
[                   ].


 


2.                                       Payment
should be made to the following account:


 


Name:


 


Account
Number:


 


Bank:


 


3.                                 The date of this
Demand is not later than the Expiry Date.


 


Yours
faithfully


 


 


	
  (Authorised
  Signatory)

  	
  (Authorised
  Signatory)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  For

  
	
   

  	
   

  
	
   

  	
  [Beneficiary]

  



 


191





















 


SCHEDULE 10


 


FORM OF BANK GUARANTEE


 




	
  To:

  	
  [Beneficiary]

  






 


Date:
[                   ]


 


Dear
Sirs


 


Irrevocable Guarantee No.
[                   ]


 


1.                                       In this
letter:


 


“Borrower” means [details].


 


“Business Day” means a day (not being a
Saturday or Sunday) on which banks and foreign exchange markets are open for
dealings in London.


 


“Expiry Date” means [details].


 


“Facility” means [details].


 


“Issuer” means [details of lssuing Bank].


 


“Payment Date” means the date for payment of
a demand being [details - minimum 5] Business Days after the date of receipt of
demand.


 


2.                                       In
consideration of your agreeing to make available the Facility the Issuer
irrevocably and unconditionally guarantees to you on receipt of written demand,
the payment and discharge by the Borrower of all amounts payable or expressed
to be payable to you pursuant to the Facility. This guarantee is given subject
as follows:


 


(a)                                  any demand made
hereunder shall be made in writing addressed to the Issuer or its offices at [details] (Attention: [details]) in the form provided in Appendix
A;


 


(b)                                 the maximum aggregate
liability of the Issuer hereunder (inclusive of all principal, interest, costs
and expenses) is [$/€/£/other]; and


 


(c)                                  no demand may be made
hereunder after the Expiry Date and only 1 demand may be made hereunder.


 


3.                                       Any
payment made hereunder shall be made on the Payment Date in [currency] by
payment to the account of the Beneficiary specified in the demand.


 


4.                                       This guarantee is not assignable or
transferable in whole or in part.


 


5.                                       This
guarantee shall be governed by English law and the courts of England shall have
exclusive jurisdiction.


 


Yours
faithfully


 


	
   

  	
   

  
	
  for
  and on behalf of

  
	
  [name of lssuing Bank]

  



 


192





















 


APPENDIX TO BANK GUARANTEE


 


[HEADED NOTEPAPER OF
BENEFICIARY]


 


	
  To:

  	
   

  	
  [                   ]

  
	
   

  	
   

  	
   

  
	
  From:

  	
   

  	
  [                   ]

  



 


Bank Guarantee Ref. No.
[                   ]
(the “Bank Guarantee”)


 


We
refer to the Bank Guarantee. Terms defined in the Bank Guarantee and not
otherwise defined herein bear the same meaning herein.


 


We
certify that:


 


(a)                                  we have provided the
Facility to the Borrower on the terms and conditions approved by you at the
time of issue of the Bank Guarantee;


 


(b)                                 the terms of the
Facility are the same as those prevailing at the time of issue of the Bank
Guarantee (or, to the extent that they are not, any amendments thereto have
been approved by you);


 


(c)                                  an aggregate amount
(the “Payment Amount”) of
[                   ]
(comprising
[                   ]
of principal and
[                   ]
of interest and/or other charges) fell due for payment in
[                   ]
by
[                   ]
on [                   ]
and remains due and unpaid at the date of this letter.


 


Accordingly,
we hereby request payment under the Bank Guarantee of the Payment Amount.
Payment is to be made to our account (A/C No.
[                   ])
with
[                   ]
at
[                   ].


 


Yours
faithfully


 


	
   

  	
   

  



for
and on behalf of [Beneficiary]


 


193





















 


SIGNATURE PAGE


 


The Company


 


	
  By:

  	
  /s/
  GRAHAM WRIGLEY

  	
   

  	 

	
   

  	
   

  	
   

  	 

	
   

  	
   

  	 

	
  By:

  	
  /s/
  ANDREW SILLITOE

  	
   

  	 

	
   

  	
   

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
   

  
	
  Address:

  	
  10
  Upper Bank Street

  
	
   

  	
   

  
	
   

  	
  London

  
	
   

  	
   

  
	
   

  	
  E14
  5JJ

  
	
   

  	
   

  
	
  Fax
  No:

  	
  +44
  (0)20 7600 5555

  
	
   

  	
   

  
	
  Attention:

  	
  Company
  secretaries (with a copy to Mr Matthew Layton)

  
	
   

  	
   

  
	
   

  	
   

  
	
  Newco

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  GRAHAM WRIGLEY

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
  By:

  	
  /s/
  ANDREW SILLITOE

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
  Address:

  	
  10
  Upper Bank Street

  
	
   

  	
   

  
	
   

  	
  London

  
	
   

  	
   

  
	
   

  	
  E14
  5JJ

  
	
   

  	
   

  
	
  Fax
  No:

  	
  +44
  (0)20 7600 5555

  
	
   

  	
   

  
	
  Attention:

  	
  Company
  secretaries (with a copy to Mr Matthew Layton)

  
					



 





















 


The Mandated Lead Arrangers


 


	
  Barclays Capital

  	 

	
   

  	
   

  
	
  By:

  	
  /s/
  FRASER McPHAIL

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
  Address:

  	
  5
  The North Colonnade

  
	
   

  	
  Canary
  Wharf

  
	
   

  	
  London

  
	
   

  	
  E14
  4BB

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7773 1840

  
	
   

  	
   

  
	
  Attention:

  	
  Mark
  Pope

  
	
   

  	
   

  
	
   

  	
   

  
	
  Credit Suisse First Boston

  	 

	
   

  
	
  By:

  	
  /s/
  PETER BACON, JAMES AMINE

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
  Address:

  	
  One
  Cabot Square

  
	
   

  	
  London

  
	
   

  	
  E14
  4QJ

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7888 4155

  
	
   

  	
   

  
	
  Attention:

  	
  Kamlesh
  Vara

  
	
   

  	
   

  
	
   

  	
   

  
	
  The Royal Bank of Scotland plc

  	 

	
   

  
	
  By:

  	
  /s/
  JOHN ELDER

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
  Address:

  	
  7th
  Floor

  
	
   

  	
  135
  Bishopsgate

  
	
   

  	
  London

  
	
   

  	
  EC2M
  3UR

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7375 5265

  
	
   

  	
   

  
	
  Attention:

  	
  John
  Elder

  
					



 





















 


The Bookrunners


 


	
  Barclays Capital

  	 

	
   

  	 

	
  By:

  	
  /s/
  FRASER McPHAIL

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
  Address:

  	
  5
  The North Colonnade

  
	
   

  	
  Canary
  Wharf

  
	
   

  	
  London

  
	
   

  	
  E14
  4BB

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7773 1840

  
	
   

  	
   

  
	
  Attention:

  	
  Mark
  Pope

  
	
   

  	
   

  
	
   

  	
   

  
	
  Credit Suisse First Boston

  	 

	
   

  
	
  By:

  	
  /s/
  PETER BACON, JAMES AMINE

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
  Address:

  	
  One
  Cabot Square

  
	
   

  	
  London

  
	
   

  	
  E14
  4QJ

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7888 4155

  
	
   

  	
   

  
	
  Attention:

  	
  Kamlesh
  Vara

  
	
   

  	
   

  
	
   

  	
   

  
	
  The Royal Bank of Scotland plc

  	 

	
   

  
	
  By:

  	
  /s/
  JOHN ELDER

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
  Address:

  	
  7th
  Floor

  
	
   

  	
  135
  Bishopsgate

  
	
   

  	
  London

  
	
   

  	
  EC2M
  3UR

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7375 5265

  
	
   

  	
   

  
	
  Attention:

  	
  John
  Elder

  
						



 





















 


The Original Lenders


 


	
  Barclays Bank PLC

  	 

	
   

  	 

	
  By:

  	
  /s/
  FRASER McPHAIL

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
  Address:

  	
  5
  North Colonnade

  
	
   

  	
  Canary
  Wharf

  
	
   

  	
  London

  
	
   

  	
  E14
  5BB

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7773 1840

  
	
   

  	
   

  
	
  Attention:

  	
  Mark
  Pope

  
	
   

  	
   

  
	
   

  	
   

  
	
  Credit Suisse First Boston

  	 

	
   

  
	
   

  	
   

  	 

	
  By:

  	
  /s/
  PETER BACON, JAMES AMINE

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
  Address:

  	
  One
  Cabot Square

  
	
   

  	
  London

  
	
   

  	
  E14
  4QJ

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7888 8125

  
	
   

  	
   

  
	
  Attention:

  	
  Loan
  Services Group

  
	
   

  	
   

  
	
   

  	
   

  
	
  The Royal Bank of Scotland plc

  	 

	
   

  
	
  By:

  	
  /s/
  JOHN ELDER

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
  Address:

  	
  7th
  Floor

  
	
   

  	
  135
  Bishopsgate

  
	
   

  	
  London

  
	
   

  	
  EC2M
  3UR

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7375 5265

  
	
   

  	
   

  
	
  Attention:

  	
  John
  Elder

  
						



 





















 


The Agent


 


	
  Barclays Bank PLC

  	 

	
   

  	 

	
  By:

  	
  /s/
  FRASER McPHAIL

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
  Address:

  	
  5
  North Colonnade

  
	
   

  	
  Canary
  Wharf

  
	
   

  	
  London

  
	
   

  	
  E14
  5BB

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7773 4893

  
	
   

  	
   

  
	
  Attention:

  	
  Frank
  Rogers

  
	
   

  	
   

  
	
   

  	
   

  
	
  The Security Trustee

  	 

	
   

  
	
  Barclays Bank PLC

  
	
   

  
	
  By:

  	
  /s/
  FRASER McPHAIL

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
  Address:

  	
  5
  North Colonnade

  
	
   

  	
  Canary
  Wharf

  
	
   

  	
  London

  
	
   

  	
  E14
  5BB

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7773 4893

  
	
   

  	
   

  
	
  Attention:

  	
  Frank
  Rogers

  
	
   

  	
   

  
	
   

  	
   

  
	
  The Issuing Bank

  	 

	
   

  
	
  Barclays Bank PLC

  
	
   

  
	
  By:

  	
  /s/
  FRASER McPHAIL

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
  Address:

  	
  5
  North Colonnade

  
	
   

  	
  Canary
  Wharf

  
	
   

  	
  London

  
	
   

  	
  E14
  5BB

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7773 4893

  
	
   

  	
   

  
	
  Attention:

  	
  Frank
  Rogers