paragraph (b) below.
Except as permitted under paragraph (c) below:
(A)
NO OBLIGOR SHALL (AND THE COMPANY SHALL
ENSURE THAT NO OTHER MEMBER OF THE GROUP WILL) CREATE OR PERMIT TO SUBSIST ANY
SECURITY OVER ANY OF ITS ASSETS.
(B)
NO OBLIGOR SHALL (AND THE COMPANY SHALL
ENSURE THAT NO OTHER MEMBER OF THE GROUP WILL):
(I)
ENTER INTO ANY ARRANGEMENT UNDER WHICH MONEY OR THE
BENEFIT OF A BANK OR OTHER ACCOUNT MAY BE APPLIED, SET OFF OR MADE SUBJECT TO A
COMBINATION OF ACCOUNTS; OR
(II)
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.
(C)
PARAGRAPHS (A) AND (B) ABOVE DO NOT
APPLY TO:
(I)
ANY NETTING OR SET OFF ARRANGEMENT (OR SECURITY OVER
A CREDIT BALANCE IN A BANK ACCOUNT WHICH IS ENTERED INTO TO EFFECT SUCH
ARRANGEMENT) ENTERED INTO BY ANY MEMBER OF THE GROUP IN THE ORDINARY COURSE OF
ITS BANKING ARRANGEMENTS FOR THE PURPOSE OF NETTING DEBIT AND CREDIT BALANCES OF
MEMBERS OF THE GROUP;
96
(II)
ANY LIEN OR OTHER SECURITY ARISING BY OPERATION OF LAW
IN THE ORDINARY COURSE OF TRADING AND NOT (UNLESS SUCH LIEN OR OTHER SECURITY IS
REMOVED WITHIN 75 DAYS OF ITS CREATION) BY REASON OF DEFAULT;
(III)
SECURITY EXISTING ON THE CLOSING DATE AS LISTED IN
SCHEDULE 13 (OVERVIEW LOANS AND SECURITIES SUBSIDIARIES);
(IV)
ANY SECURITY OR QUASI-SECURITY OVER OR AFFECTING ANY ASSET
ACQUIRED BY A MEMBER OF THE GROUP AFTER THE CLOSING DATE OR ASSETS OF COMPANIES
WHICH BECOME MEMBERS OF THE GROUP AFTER THE CLOSING DATE;
(A)
UP TO AN AMOUNT OF EUR 30,000,000; OR
(B)
IF THE SECURITY OR QUASI-SECURITY IS REMOVED OR DISCHARGED
WITHIN 6 MONTHS OF THE ACQUISITION OF SUCH ASSET OR SUCH COMPANY BECOMING A
MEMBER OF THE GROUP PROVIDED THAT THE SECURITY OR QUASI-SECURITY WAS NOT CREATED
OR THE PRINCIPAL AMOUNT SECURED HAS NOT INCREASED IN CONTEMPLATION OF THE
ACQUISITION OF THE RELEVANT ASSET;
(V)
ANY RETENTION OF TITLE, HIRE PURCHASE OR CONDITIONAL SALE
ARRANGEMENT OR ARRANGEMENTS HAVING SIMILAR EFFECT IN RESPECT OF GOODS SUPPLIED
TO A MEMBER OF THE GROUP IN THE ORDINARY COURSE OF BUSINESS AND ON THE SUPPLIERS
STANDARD OR USUAL TERMS;
(VI)
ANY SECURITY IN FAVOUR OF AN ANCILLARY LENDER OVER GOODS OR
DOCUMENTS OF TITLE TO GOODS ARISING IN THE ORDINARY COURSE OF LETTER OF CREDIT
TRANSACTIONS ENTERED INTO IN THE ORDINARY COURSE OF BUSINESS;
(VII)
ANY SECURITY SECURING THE EXISTING SENIOR FACILITY AGREEMENT
AND/OR THE EXISTING MEZZANINE FACILITY AGREEMENT PROVIDED THAT SUCH SECURITY IS
RELEASED UPON THE FIRST UTILISATION UNDER THE FACILITIES;
(VIII)
CASH COVER RELATING TO A BANK GUARANTEE; OR
(IX)
ANY SECURITY ARISING PURSUANT TO AN ORDER OF ATTACHMENT
OR INJUNCTION RESTRAINING DISPOSAL OF ASSETS OR SIMILAR LEGAL PROCESS ARISING IN
CONNECTION WITH COURT PROCEEDINGS BEING CONTESTED BY THE RELEVANT MEMBER OF THE
GROUP IN GOOD FAITH WITH A REASONABLE PROSPECT OF SUCCESS