Exhibit
10.11


 


CONFORMED
COPY


 


$975,000,000


 


SENIOR FACILITY AGREEMENT


 


dated 10 October 2003


 


 


for


 


 


DUCHESSGROVE LIMITED


 


and


 


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.


 


 





 


Ref: NMS/BJSB


 

















 


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

  	
   

  
	
  SECTION 9

  	
   

  
	
  CHANGES TO
  PARTIES

  	
   

  



 


i

















 


	
  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 SCHEDULES

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  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)                            DUCHESSGROVE LIMITED, a company incorporated
in England and Wales with registered number 4886072 (the “Company”);


 


(2)                            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)                            THE 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 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.


 


“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.


 


“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).


 


2

















 


“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


 


(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:


 


3

















 


(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.


 


“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.


 


4

















 


“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.


 


“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


 


5

















 


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.


 


“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:


 


6

















 


(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),


 


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.;


 


7

















 


(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;


 


(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;


 


8

















 


(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.


 


“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 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


 


9

















 


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.


 


“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.


 


10

















 


“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).


 


“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),


 


11

















 


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) 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).


 


12

















 


“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),


 


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.


 


13

















 


“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);


 


(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


 


14

















 


(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).


 


“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 agreement
in the form to be agreed between the High Yield Notes Issuer and Newco but on
terms consistent with the Intercreditor Agreement and to be made between the
High Yield Notes Issuer and Newco on (or about) the date the High Yield Notes
are issued and 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 High Yield Notes are issued for the purpose of funding Newco’s
prepayment (or repayment, as appropriate) of the Bridge Facility.


 


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


 


“High Yield Notes” means the high yield notes of up to
$375,000,000 in principal amount due no earlier than eight years after issuance
to be issued by the High Yield Notes Issuer on terms consistent with the
Intercreditor Agreement for the purposes of replacing or refinancing the Bridge
Facility (and shall include, for the avoidance of doubt, the Demand Securities
as defined in the Bridge Facility Agreement).


 


“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


 


15

















 


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 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


 


16

















 


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.


 


“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 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.


 


17

















 


“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.


 


“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


 


18

















 


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);


 


(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.


 


19

















 


“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.


 


“Midco” means 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.


 


20

















 


“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 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


 


21

















 


(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 an interest bearing cash collateral
account in the name of Newco with the Security Trustee 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.


 


“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


 


22

















 


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; and


 


(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.


 


“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;


 


23

















 


(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,


 


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) and (n) 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


 


24

















 


(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; and


 


(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.


 


“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;


 


25

















 


(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;


 


(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).


 


26

















 


“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 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;


 


27

















 


(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;


 


(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; or


 


(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.


 


“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:


 


28

















 


(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 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:


 


29

















 


(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;


 


(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 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;
and


 


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


 


“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;


 


30

















 


(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; and


 


(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).


 


“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;


 


31

















 


(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.


 


“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.


 


32

















 


“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.


 


“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.


 


33

















 


“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; and


 


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


 


“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.


 


“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.


 


34

















 


“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 Ill 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


 


(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.


 


35

















 


“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  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 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.


 


36

















 


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


 


“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;


 


37

















 


(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.


 


38

















 


“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.


 


39

















 


“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:


 


40

















 


(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:


 


41

















 


(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.


 


42

















 


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.


 


43

















 


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:


 


44

















 


(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


 


45

















 


(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);


 


46

















 


(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.


 


47

















 


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.


 


48

















 


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


 


49

















 


(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;


 


50

















 


(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.


 


51

















 


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.


 


52

















 


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”).


 


(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.


 


53

















 


(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.


 


(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


 


54

















 


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.


 


55

















 


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).


 


56

















 


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


 


(d)                                  such other facilities as may be required and
as the Agent (acting reasonably) and the relevant Ancillary Lender may agree.


 


57

















 


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.


 


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:


 


58

















 


(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.


 


(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:


 


59

















 


(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.


 


60

















 


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.


 


61

















 


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.


 


62

















 


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).


 


63

















 


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.


 


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(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


 


65

















 


(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;


 


66

















 


(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


 


67

















 


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


 


68

















 


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


 


69

















 


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.


 


71

















 


(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


 


72

















 


(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.


 


73

















 


(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


 


75

















 


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


 


77

















 


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


 


78

















 


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.


 


79

















 


(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.


 


80

















 


(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


 


81

















 


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.


 


82

















 


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 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.


 


83

















 


“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:


 


(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


 


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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.


 


(b)                           Paragraph (a) above shall not apply:


 


(i)                                      with respect to any Tax assessed on a Senior
Finance Party:


 


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(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
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.


 


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(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


 


(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).


 


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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:


 


(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


 


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(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,
evaluating, negotiating or complying with that request or in connection with
that required amendment.


 


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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


 


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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;


 


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(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.


 


103

















 


(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 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;


 


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(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;


 


105

















 


(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.


 


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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


 


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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:


 


108

















 


	
  (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:


 


109

















 


	
  (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.


 


110

















 


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


 


111

















 


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:


 


112

















 


(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


 


113

















 


(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;


 


114

















 


(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


 


115

















 


(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 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 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


 


116

















 


(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.


 


“Total Net Interest Payable” means, in relation to any Testing
Period, the aggregate amount of interest (other than capitalised interest) and
any other finance charges payable in cash by the Group in that Testing Period
in respect of Total 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; and


 


(ii)                                   excluding any arrangement or underwriting
fees in respect of the Facilities, the Bridge Facility and the High Yield Notes
(or any other refinancing of the Bridge Facility).


 


“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.


 


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


 


117

















 


(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.


 


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,


 


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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


 


(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):


 


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(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;


 


(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:


 


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(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.


 


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.


 


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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 acquisition of or
subscription for shares or concerning the protection of shareholders’ capital)
and any Security in relation to it is released.


 


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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.


 


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) 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;


 


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(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.


 


(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:


 


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(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;


 


(ii)                                   against those risks, and to the extent,
required by applicable law or by contract;


 


(iii)                                in-orbit insurance for the fleet of I3
Satellites where the annual premium for such insurance does not exceed
$3,000,000 provided that:


 


(A)                           if the rating of the Senior Facilities is
less than BB- (as rated by Standard & Poor’s Rating Services) and Ba3 (as
rated by Moody’s Investor Services) or the rating of the High Yield Notes is
less than B (as rated by Standard & Poor’s Rating Services) and B2 (as
rated by Moody’s Investor Services) due to the inadequacy of such insurance
then in-orbit insurance for the fleet of I3 Satellites will be obtained that
will take those ratings to those levels subject to a maximum annual premium
payable of $5,700,000; and


 


(B)                             no such in-orbit insurance for the fleet of
I3 Satellites will be required once one I4 Satellite has been accepted
in-orbit; and


 


(iv)                               launch and in-orbit insurance cover (for an
initial period of not less than six months) on all three I4 Satellites with
partial cover of not less than $100,000,000 for the first loss and net book
value cover for all subsequent losses, and, upon expiration of such initial
launch and in-orbit policy, in-orbit insurance for a minimum of two I4
Satellites at net book value cover at all times.


 


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)                           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.


 


(c)                            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.


 


(d)                           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.


 


125

















 


(e)                            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):


 


(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;


 


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(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 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.


 


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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 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 or any of the
High Yield 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; or


 


(d)                                  as expressly permitted or required pursuant
to the Intercreditor Agreement or this Agreement.


 


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.


 


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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.


 


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 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 balance of the Overfunding Account after
such withdrawal is in excess of two-thirds of the amount of the Overfunding; or


 


(ii)                                   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.


 


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 25.20 (Financial Indebtedness), Clause 25.22 (Issue of shares), paragraph (a) of Clause
25.23


 


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(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.


 


136

















 


(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


 


137

















 


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;


 


139

















 


(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.


 


140

















 


(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.


 


141

















 


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.


 


153

















 


(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.


 


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.


 


154

















 


(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.


 


(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


 


155

















 


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.


 


156

















 


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.


 


157

















 


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

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


158

















 


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

  	
   

  



 


159

















 


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

  	
   

  
	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  



 


160

















 


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


 


161

















 


(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.


 


162

















 


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.


 


163

















 


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 Agreemnts 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.


 


164

















 


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.


 


165

















 


(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


 


166

















 


(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;


 


167

















 


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.


 


168

















 


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


 


 


	
   

  	
   

  	
   

  
	
  authorised signatory for

  
	
  [name of relevant Borrower]

  



 












•                  Delete
for Scheme of Arrangement Utilisation


•                  Delete
if not applicable


 


169

















 


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]

  



 


170

















 


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.


 


171

















 


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]

  



 


172

















 


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:


 





 


(b)                                  in relation to a Loan in any currency other
than sterling:


 





 


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.

  



 


173

















 


	
  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.


 


174

















 


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.


 


175

















 


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)


 


176

















 


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:


 


177

















 


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].


 


178

















 


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.


 


179

















 


[insert applicable certification language]


 


 


	
   

  	
   

  	
   

  
	
  for and on behalf of

  
	
  [name of auditors of the Company]

  



 


180

















 


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.

  



 


181

















 


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.

  



 


182

















 


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.


 


183

















 


(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:

  



 


184

















 


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]

  



 


185

















 


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]

  



 


186

















 


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]

  



 


187

















 


SIGNATURE PAGE


 


The Company


 


	
  By:

  	
  GRAHAM WRIGLEY

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  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:

  	
  GRAHAM WRIGLEY

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  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)

  



 


Duchessgrove Limited and Grapeclose Limited $975,000,000 Senior
Facility Agreement Signature Pages


 

















 


	
  The
  Mandated Lead Arrangers

  
	
   

  	
   

  
	
  Barclays Capital

  
	
   

  	
   

  
	
  By:

  	
  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:

  	
  PETER BACON and JAMES
  AMINE

  
	
   

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  One Cabot Square

  
	
   

  	
   

  
	
   

  	
  London

  
	
   

  	
   

  
	
   

  	
  E14 4QJ

  
	
   

  	
   

  
	
  Fax No:

  	
  020 7888 4155

  
	
   

  	
   

  
	
  Attention:

  	
  Kamlesh Vara

  
	
   

  	
   

  
	
   

  	
   

  
	
  The Royal
  Bank of Scotland plc

  
	
   

  	
   

  
	
  By:

  	
  JOHN ELDER

  
	
   

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  7th Floor

  
	
   

  	
   

  
	
   

  	
  135 Bishopsgate

  
	
   

  	
   

  
	
   

  	
  London

  
	
   

  	
   

  
	
   

  	
  EC2M 3UR

  
	
   

  	
   

  
	
  Fax No:

  	
  020 7375 5265

  
	
   

  	
   

  
	
  Attention:

  	
  John Elder

  



 


Duchessgrove Limited and Grapeclose Limited $975,000,000 Senior
Facility Agreement Signature Pages


 

















 


	
  The
  Bookrunners

  
	
   

  	
   

  
	
  Barclays
  Capital

  
	
   

  	
   

  
	
  By:

  	
  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:

  	
  PETER BACON and JAMES
  AMINE

  
	
   

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  One Cabot Square

  
	
   

  	
   

  
	
   

  	
  London

  
	
   

  	
   

  
	
   

  	
  E14 4QJ

  
	
   

  	
   

  
	
  Fax No:

  	
  020 7888 4155

  
	
   

  	
   

  
	
  Attention:

  	
  Kamlesh Vara

  
	
   

  	
   

  
	
   

  	
   

  
	
  The Royal
  Bank of Scotland plc

  
	
   

  	
   

  
	
  By:

  	
  JOHN ELDER

  
	
   

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  7th Floor

  
	
   

  	
   

  
	
   

  	
  135 Bishopsgate

  
	
   

  	
   

  
	
   

  	
  London

  
	
   

  	
   

  
	
   

  	
  EC2M 3UR

  
	
   

  	
   

  
	
  Fax No:

  	
  020 7375 5265

  
	
   

  	
   

  
	
  Attention:

  	
  John Elder

  



 


Duchessgrove Limited and Grapeclose Limited $975,000,000 Senior
Facility Agreement Signature Pages


 

















 


	
  The
  Original Lenders

  
	
   

  	
   

  
	
  Barclays
  Bank PLC

  
	
   

  	
   

  
	
  By:

  	
  FRASER McPHAIL

  
	
   

  	
   

  
	
  Address:

  	
  5 North Colonnade

  
	
   

  	
   

  
	
   

  	
  Canary Wharf

  
	
   

  	
   

  
	
   

  	
  London

  
	
   

  	
   

  
	
   

  	
  E14 5BB

  
	
   

  	
   

  
	
  Fax No:

  	
  020 7773 1840

  
	
   

  	
   

  
	
  Attention:

  	
  Mark Pope

  
	
   

  	
   

  
	
   

  	
   

  
	
  Credit
  Suisse First Boston

  
	
   

  	
   

  
	
  By:

  	
  PETER BACON and 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:

  	
  JOHN ELDER

  
	
   

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  7th Floor

  
	
   

  	
   

  
	
   

  	
  135 Bishopsgate

  
	
   

  	
   

  
	
   

  	
  London

  
	
   

  	
   

  
	
   

  	
  EC2M 3UR

  
	
   

  	
   

  
	
  Fax No:

  	
  020 7375 5265

  
	
   

  	
   

  
	
  Attention:

  	
  John Elder

  



 


Duchessgrove Limited and Grapeclose Limited $975,000,000 Senior
Facility Agreement Signature Pages


 

















 


	
  The Agent

  	
   

  
	
   

  	
   

  
	
  Barclays
  Bank PLC

  
	
   

  	
   

  
	
  By:

  	
  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:

  	
  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:

  	
  FRASER McPHAIL

  
	
   

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  5 North Colonnade

  
	
   

  	
   

  
	
   

  	
  Canary Wharf

  
	
   

  	
   

  
	
   

  	
  London

  
	
   

  	
   

  
	
   

  	
  E14 5BB

  
	
   

  	
   

  
	
  Fax No:

  	
  020 7773 4893

  
	
   

  	
   

  
	
  Attention:

  	
  Frank Rogers

  



 


Duchessgrove Limited and Grapeclose Limited $975,000,000 Senior
Facility Agreement Signature Pages