|
EXHIBIT 10.3
THE TAKING OF THIS DOCUMENT OR ANY
CERTIFIED COPY OF IT OR ANY DOCUMENT WHICH CONSTITUTES SUBSTITUTE
DOCUMENTATION FOR IT, OR ANY DOCUMENT WHICH INCLUDES WRITTEN
CONFIRMATIONS OR REFERENCES TO IT, INTO AUSTRIA AS WELL AS PRINTING
OUT ANY E-MAIL COMMUNICATION WHICH REFERS TO ANY FINANCE DOCUMENT
IN AUSTRIA OR SENDING ANY E-MAIL COMMUNICATION CARRYING AN
ELECTRONIC OR DIGITAL SIGNATURE WHICH REFERS TO ANY FINANCE
DOCUMENT TO AN AUSTRIAN ADDRESSEE MAY CAUSE THE IMPOSITION OF
AUSTRIAN STAMP DUTY. ACCORDINGLY, KEEP THE ORIGINAL DOCUMENT AS
WELL AS ALL CERTIFIED COPIES THEREOF AND WRITTEN AND SIGNED
REFERENCES TO IT OUTSIDE OF AUSTRIA AND AVOID PRINTING OUT ANY
E-MAIL COMMUNICATION WHICH REFERS TO ANY BRIDGE FINANCE DOCUMENT IN
AUSTRIA OR SENDING ANY E-MAIL COMMUNICATION CARRYING AN ELECTRONIC
OR DIGITAL SIGNATURE WHICH REFERS TO ANY BRIDGE FINANCE DOCUMENT TO
AN AUSTRIAN ADDRESSEE
March 3, 2008
BRIDGE LOAN
AGREEMENT
MAGYAR TELECOM
B.V.
as Borrower
arranged by
MERRILL LYNCH
INTERNATIONAL
and
BNP PARIBAS
as Mandated Lead Arrangers
and Bookrunners
with
BNP PARIBAS TRUST CORPORATION
UK LIMITED
as Security Agent
and
MERRILL LYNCH
INTERNATIONAL
as Administrative
Agent
TABLE OF
CONTENTS
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PAGE |
| ARTICLE I. DEFINITIONS |
|
1 |
|
|
|
| Section 1.1 |
|
Defined
Terms |
|
1 |
| Section 1.2 |
|
Interpretation |
|
34 |
| Section 1.3 |
|
Intercreditor Deed |
|
37 |
|
|
| ARTICLE II. THE CREDIT FACILITY |
|
37 |
|
|
|
| Section 2.1 |
|
Commitments to Make Bridge Loans; Tranching;
Parties |
|
37 |
| Section 2.2 |
|
Conversion to Term Loans |
|
38 |
| Section 2.3 |
|
Option to
Exchange Term Loans for Exchange Notes |
|
38 |
| Section 2.4 |
|
Interest;
Default Interest |
|
39 |
| Section 2.5 |
|
Mandatory
Prepayment |
|
40 |
| Section 2.6 |
|
Optional
Prepayment |
|
41 |
| Section 2.7 |
|
Breakage
Costs; Indemnity |
|
42 |
| Section 2.8 |
|
Effect of
Notice of Prepayment |
|
43 |
| Section 2.9 |
|
Payments |
|
43 |
| Section 2.10 |
|
Taxes |
|
44 |
| Section 2.11 |
|
Right of
Set-Off, Sharing of Payments, Etc. |
|
47 |
| Section 2.12 |
|
Requirements of Law |
|
48 |
| Section 2.13 |
|
Failure
of a Reference Bank to Supply a Rate |
|
50 |
| Section 2.14 |
|
Market
Disruption |
|
50 |
| Section 2.15 |
|
Alternative Basis of Interest or Funding |
|
50 |
| Section 2.16 |
|
Certain
Fees |
|
51 |
|
|
| ARTICLE III. REPRESENTATIONS AND WARRANTIES |
|
51 |
|
|
|
| Section 3.1 |
|
Representations and Warranties |
|
51 |
| Section 3.2 |
|
Due
incorporation |
|
51 |
| Section 3.3 |
|
Power to
borrow/guarantee |
|
51 |
| Section 3.4 |
|
Binding
obligations |
|
51 |
| Section 3.5 |
|
No
conflict with other obligations |
|
51 |
| Section 3.6 |
|
No
litigation |
|
52 |
| Section 3.7 |
|
Financial
statements |
|
52 |
| Section 3.8 |
|
No filing
required |
|
52 |
| Section 3.9 |
|
Legal and
beneficial owners |
|
53 |
| Section 3.10 |
|
No
material adverse change |
|
53 |
| Section 3.11 |
|
Compliance with Environmental Laws and Licenses |
|
53 |
| Section 3.12 |
|
Environmental Claim |
|
53 |
| Section 3.13 |
|
Intellectual Property Rights |
|
53 |
| Section 3.14 |
|
Shares |
|
54 |
| Section 3.15 |
|
Base Case
Model |
|
54 |
| Section 3.16 |
|
Licenses
and Necessary Authorizations |
|
54 |
| Section 3.17 |
|
Consents
obtained |
|
54 |
| Section 3.18 |
|
Contractual commitments |
|
55 |
| Section 3.19 |
|
Telecommunications Laws |
|
55 |
i
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|
|
|
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| Section 3.20 |
|
No
Default |
|
55 |
| Section 3.21 |
|
Choice of
law |
|
55 |
| Section 3.22 |
|
No
Withholding Tax |
|
55 |
| Section 3.23 |
|
Group
Structure Chart |
|
55 |
| Section 3.24 |
|
Information Package |
|
55 |
| Section 3.25 |
|
Copies of
documents to be true and accurate |
|
56 |
| Section 3.26 |
|
Intercompany Loans |
|
56 |
| Section 3.27 |
|
Repetition |
|
56 |
|
|
| ARTICLE IV. GENERAL UNDERTAKINGS |
|
57 |
|
|
|
| Section 4.1 |
|
Notice of
Default, etc. |
|
57 |
| Section 4.2 |
|
Consents
and authorizations |
|
57 |
| Section 4.3 |
|
Licenses
and Necessary Authorizations |
|
57 |
| Section 4.4 |
|
Business |
|
58 |
| Section 4.5 |
|
Authorized Officers |
|
58 |
| Section 4.6 |
|
Auditors |
|
58 |
| Section 4.7 |
|
Pari
passu |
|
58 |
| Section 4.8 |
|
Provision
of further information |
|
58 |
| Section 4.9 |
|
Insurance |
|
59 |
| Section 4.10 |
|
Inspection |
|
59 |
| Section 4.11 |
|
Notification of Environmental Claim and Expenditure |
|
59 |
| Section 4.12 |
|
Compliance with laws and regulations |
|
59 |
| Section 4.13 |
|
Relevant
Substance |
|
59 |
| Section 4.14 |
|
Tax |
|
60 |
| Section 4.15 |
|
Use of
proceeds |
|
60 |
| Section 4.16 |
|
Material
Subsidiaries |
|
60 |
| Section 4.17 |
|
Restricted Payments |
|
60 |
| Section 4.18 |
|
Virtual
Mobile Services |
|
61 |
| Section 4.19 |
|
Memorex
Shareholder Squeeze Out |
|
61 |
| Section 4.20 |
|
Negative
Pledge |
|
61 |
| Section 4.21 |
|
No
Merger |
|
61 |
| Section 4.22 |
|
Disposals |
|
62 |
| Section 4.23 |
|
Borrowed
Money |
|
62 |
| Section 4.24 |
|
Guarantees |
|
62 |
| Section 4.25 |
|
Reduction
or purchase of capital |
|
62 |
| Section 4.26 |
|
Investments |
|
62 |
| Section 4.27 |
|
Swaps and
Hedging |
|
62 |
| Section 4.28 |
|
Change of
Business |
|
63 |
| Section 4.29 |
|
Constitutional Documents/the Existing High Yield Funding Loan
Agreement/the Existing FRN Funding Loan Agreements/ Funding Loan
Agreements |
|
63 |
| Section 4.30 |
|
Arm’s length transactions |
|
63 |
| Section 4.31 |
|
The
Parent and the IPO Subsidiary |
|
63 |
| Section 4.32 |
|
Bank
Accounts |
|
63 |
| Section 4.33 |
|
Existing
High Yield Notes and Existing FRN Bonds |
|
64 |
| Section 4.34 |
|
Conditions Subsequent |
|
64 |
| Section 4.35 |
|
Change of
Control |
|
65 |
| Section 4.36 |
|
PIK Notes
Refinancing |
|
65 |
| Section 4.37 |
|
Issuance
of Refinancing Securities |
|
66 |
| Section 4.38 |
|
Marketing
of Refinancing Securities |
|
67 |
ii
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|
|
| ARTICLE V. INFORMATION UNDERTAKINGS |
|
68 |
|
|
|
| Section 5.1 |
|
Financial
statements |
|
68 |
| Section 5.2 |
|
Requirements as to Accounts |
|
69 |
| Section 5.3 |
|
Budget |
|
70 |
| Section 5.4 |
|
Presentations |
|
70 |
| Section 5.5 |
|
Year-end |
|
71 |
| Section 5.6 |
|
Information: miscellaneous |
|
71 |
| Section 5.7 |
|
Notification of default |
|
71 |
| Section 5.8 |
|
“Know your customer” checks |
|
71 |
|
|
| ARTICLE VI. CONDITIONS PRECEDENT |
|
73 |
|
|
|
| Section 6.1 |
|
Initial
Conditions Precedent |
|
73 |
| Section 6.2 |
|
Further
Conditions Precedent |
|
73 |
| Section
6.3 |
|
Certain
Funds Period |
|
73 |
|
|
|
ARTICLE VII. TRANSFER OF THE LOANS, THE
INSTRUMENTS EVIDENCING SUCH LOANS AND THE EXCHANGE NOTES;
REPRESENTATIONS OF LENDERS; PARTICIPATIONS
|
|
74 |
|
|
|
| Section 7.1 |
|
Transfer
of the Loans |
|
74 |
| Section 7.2 |
|
Transfer
of the Exchange Notes |
|
75 |
| Section 7.3 |
|
Permitted
Assignments |
|
75 |
| Section 7.4 |
|
Permitted
Participants; Effect |
|
75 |
| Section 7.5 |
|
Dissemination of Information |
|
76 |
| Section 7.6 |
|
Replacement Securities upon Transfer or Exchange |
|
76 |
| Section 7.7 |
|
Register |
|
76 |
| Section 7.8 |
|
Promissory Note |
|
77 |
|
|
| ARTICLE VIII. EVENTS OF DEFAULT |
|
77 |
|
|
|
| Section 8.1 |
|
Events of
Default |
|
77 |
| Section 8.2 |
|
Non-payment |
|
77 |
| Section 8.3 |
|
Breach of
certain obligations |
|
77 |
| Section 8.4 |
|
Breach of
other obligations |
|
78 |
| Section 8.5 |
|
Misrepresentation |
|
78 |
| Section 8.6 |
|
Challenge
to security |
|
78 |
| Section 8.7 |
|
Cross-default |
|
78 |
| Section 8.8 |
|
Hedging
Default |
|
79 |
| Section 8.9 |
|
Appointment of receivers and managers |
|
79 |
| Section 8.10 |
|
HTCC,
Parent and intervening Holding Companies |
|
79 |
| Section 8.11 |
|
Insolvency |
|
79 |
| Section 8.12 |
|
Legal
process |
|
80 |
| Section 8.13 |
|
Compositions |
|
80 |
| Section 8.14 |
|
Winding-up |
|
80 |
| Section 8.15 |
|
Analogous
proceedings |
|
81 |
| Section 8.16 |
|
Principal
Agreements |
|
81 |
| Section 8.17 |
|
Unlawfulness |
|
81 |
| Section 8.18 |
|
Telecommunications Laws |
|
81 |
| Section 8.19 |
|
Repudiation |
|
81 |
iii
|
|
|
|
|
| Section 8.20 |
|
Seizure |
|
82 |
| Section 8.21 |
|
Material
events |
|
82 |
| Section 8.22 |
|
Acceleration |
|
82 |
| Section 8.23 |
|
Demand
basis |
|
82 |
| Section 8.24 |
|
Clean-Up |
|
82 |
| Section 8.25 |
|
Rights
and Remedies Cumulative |
|
83 |
| Section 8.26 |
|
Delay or
Omission Not Waiver |
|
83 |
| Section 8.27 |
|
Waiver of
Past Defaults |
|
83 |
| Section 8.28 |
|
Rights of
Lenders to Receive Payment |
|
84 |
|
|
| ARTICLE IX. TERMINATION |
|
84 |
|
|
|
| Section 9.1 |
|
Termination |
|
84 |
| Section 9.2 |
|
Survival
of Certain Provisions |
|
84 |
|
|
| ARTICLE X. GUARANTEE |
|
84 |
|
|
|
| Section 10.1 |
|
The
Guarantees |
|
84 |
| Section 10.2 |
|
Limitation on Liability |
|
86 |
| Section 10.3 |
|
Stay of
Acceleration |
|
87 |
| Section 10.4 |
|
Further
Guarantee Provisions |
|
87 |
| Section 10.5 |
|
Additional Guarantors |
|
87 |
| Section 10.6 |
|
Release
of Guarantors |
|
88 |
|
|
| ARTICLE XI. SECURITY |
|
88 |
|
|
|
| Section 11.1 |
|
Security
Documents |
|
88 |
| Section 11.2 |
|
Release
of Security Interest |
|
89 |
| Section 11.3 |
|
Further
Action |
|
90 |
| Section 11.4 |
|
Co-Security Agent |
|
90 |
|
|
| ARTICLE XII. INDEMNITY |
|
91 |
|
|
|
| Section 12.1 |
|
Indemnification |
|
91 |
| Section 12.2 |
|
Indemnity
Not Available |
|
91 |
| Section 12.3 |
|
Settlement of Claims |
|
92 |
| Section 12.4 |
|
Appearance Expenses |
|
92 |
| Section 12.5 |
|
Indemnity
for Taxes, Reserves and Expenses |
|
93 |
| Section 12.6 |
|
Survival
of Indemnification |
|
93 |
| Section 12.7 |
|
Liability
Not Exclusive; Payments |
|
94 |
|
|
| ARTICLE XIII. THE ADMINISTRATIVE AGENT; THE
ARRANGERS |
|
94 |
|
|
|
| Section 13.1 |
|
Appointment |
|
94 |
| Section 13.2 |
|
Delegation of Duties |
|
94 |
| Section 13.3 |
|
Exculpatory Provisions |
|
94 |
| Section 13.4 |
|
Reliance
by the Administrative Agent |
|
94 |
| Section 13.5 |
|
Notice of
Default |
|
95 |
| Section 13.6 |
|
Non-Reliance on the Administrative Agent and Other
Lenders |
|
95 |
| Section 13.7 |
|
Indemnification |
|
96 |
| Section 13.8 |
|
Administrative Agent, in Its Individual Capacities |
|
96 |
iv
|
|
|
|
|
| Section 13.9 |
|
Successor
Administrative Agent |
|
96 |
| Section 13.10 |
|
Role of
the Arrangers |
|
97 |
| Section 13.11 |
|
Reliance
and Engagement Letters |
|
97 |
|
|
| ARTICLE XIV. MISCELLANEOUS |
|
97 |
|
|
|
| Section 14.1 |
|
Expenses;
Documentary Taxes |
|
97 |
| Section 14.2 |
|
Notices |
|
97 |
| Section 14.3 |
|
Consent
to Amendments and Waivers |
|
99 |
| Section 14.4 |
|
Parties |
|
100 |
| Section 14.5 |
|
New York
Law; Submission to Jurisdiction; Waiver of Jury Trial |
|
100 |
| Section 14.6 |
|
Replacement Notes |
|
101 |
| Section 14.7 |
|
Appointment of Agent for Service |
|
101 |
| Section 14.8 |
|
Marshalling; Recapture |
|
101 |
| Section 14.9 |
|
Limitation of Liability |
|
101 |
| Section 14.10 |
|
Independence of Covenants |
|
102 |
| Section 14.11 |
|
Currency
Indemnity |
|
102 |
| Section 14.12 |
|
Waiver of
Immunity |
|
102 |
| Section 14.13 |
|
Freedom
of Choice |
|
102 |
| Section 14.14 |
|
Successors and Assigns |
|
103 |
| Section 14.15 |
|
Merger |
|
103 |
| Section 14.16 |
|
Severability Clause |
|
103 |
| Section 14.17 |
|
Representations, Warranties and Agreements to Survive
Delivery |
|
103 |
| Section 14.18 |
|
Day Count
Connection |
|
103 |
| Section 14.19 |
|
PATRIOT
Act Notice |
|
103 |
| Section 14.20 |
|
Nature of
a Bridge Finance Party’s Rights and Obligations |
|
103 |
| Section 14.21 |
|
Counterparts |
|
104 |
| Section 14.22 |
|
Place of
Performance outside Austria |
|
104 |
| Section 14.23 |
|
Original
Guarantors |
|
104 |
| Section 14.24 |
|
Security
for Costs |
|
105 |
|
|
|
| EXHIBIT A. |
|
FORM OF
ASSIGNMENT AND ACCEPTANCE |
|
|
| EXHIBIT B. |
|
FORM OF
BRIDGE NOTE |
|
|
| EXHIBIT C. |
|
FORM OF
ACCESSION DOCUMENT |
|
|
| EXHIBIT D. |
|
FORM OF
UTILIZATION NOTICE |
|
|
|
|
|
| Schedule 1 |
|
Original
Guarantors |
|
|
| Schedule 2 |
|
Conditions Precedent Documents |
|
|
| Schedule 3 |
|
Calculation of the Mandatory Cost |
|
|
| Schedule 4 |
|
Commitment Amounts |
|
|
| Schedule 5 |
|
Principal
Agreements |
|
|
The Registrant has omitted the contents
of certain schedules from the SEC Filing. The Registrant will
furnish a copy of any omitted content from any schedule to the
Commission or its staff upon request.
v
THIS BRIDGE LOAN
AGREEMENT , dated as of March 3, 2008 (this
“ Credit Agreement ”) is made in London
by and among:
(a) MAGYAR TELECOM B.V., a
company incorporated in The Netherlands (registered number
33286951) with its registered office at Laan van Kronenburg 8, 1183
AS Amstelveem, The Netherlands (the “ Borrower
”);
(b) THE PERSONS listed in
Schedule 1 as original guarantors (the “ Original
Guarantors ”);
(c) MERRILL LYNCH
INTERNATIONAL, as Administrative Agent;
(d) BNP PARIBAS TRUST
CORPORATION UK LIMITED, as Security Agent;
(e) the LENDERS party
hereto;
(f) MERRILL LYNCH
INTERNATIONAL and BNP PARIBAS, as mandated lead arrangers,
bookrunners and syndication agents (the “ Mandated Lead
Arrangers ”); and
(g) MERRILL LYNCH
INTERNATIONAL BANK LIMITED, LONDON BRANCH and BNP PARIBAS, as
underwriters (the “ Underwriters
”).
The parties hereto agree as
follows:
ARTICLE I.
DEFINITIONS
Section 1.1 Defined
Terms
As used in this Credit
Agreement, the following terms shall have the meanings specified
below:
“ Acceptable
Bank ” means:
(a) a Lender;
(b) any bank or financial
institution which has a rating for its long-term unsecured and non
credit-enhanced debt obligations of A or higher by S&P or Fitch
or A1 or higher by Moody’s or a comparable rating from an
internationally recognized credit rating agency; or
(c) any other bank or
financial institution approved by the Administrative Agent (acting
reasonably).
“ Accession
Document ” means a document substantially in the form
set out in Exhibit C with such amendments as the Administrative
Agent and the Borrower may agree.
“ Accounting
Principles ” means generally accepted accounting
principles set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified
Public Accountants, in the opinions and pronouncements of the
Public Company Accounting Oversight Board and in the statements and
pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by
a significant segment of the accounting profession in the United
States, which are in effect from time to time.
1
“
Accounts ” means each set of financial
statements required to be prepared by a member of the Group and
supplied to the Administrative Agent pursuant to
Section 5.1.
“
Acquisition ” means the acquisition by Invitel
of Memorex on the terms of the Acquisition Documents.
“ Acquisition
Agreement ” means the sale and purchase agreement
entered into between Invitel and the Vendor relating to the
Acquisition.
“ Acquisition
Documents ” means the Acquisition Agreement and the
Disclosure Letter and any other document designated as an
“Acquisition Document” by the Administrative Agent and
the Borrower.
“ Action
” has the meaning specified in Section 12.2.
“ Additional
Guarantor ” means a member of the Group which becomes
a Guarantor after the date of this Credit Agreement pursuant to
Section 10.5.
“ Administrative
Agent ” means Merrill Lynch International, acting as
agent pursuant to ARTICLE XIII or any successor or replacement
Administrative Agent, acting in such capacity.
“ Administrative
Party ” means an Arranger, the Administrative Agent
or the Security Agent.
“ Affected
Party ” means any Lender, any beneficial owner which
controls any Lender, and their respective successors and
assigns.
“ Affected
Person ” has the meaning specified in
Section 5.3
“
Affiliate ” means, with respect to any
specified person, any other person directly or indirectly
controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this
definition, “ control ” (including with
correlative meanings, the terms “ controlling
”, “ controlled by ” and “
under common control with ”), as used with
respect to any person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management or policies of such person, whether through the
ownership of voting securities, by agreement or otherwise. Neither
the Lenders nor any of their Affiliates will be treated as an
Affiliate of the Borrower or any of its Subsidiaries for purposes
of this Credit Agreement.
“ Agent’s
Spot Rate of Exchange ” means the Administrative
Agent’s spot rate of exchange for the purchase of the
relevant currency in the London foreign exchange market with the
Base Currency as of 11:00 a.m. on a particular day.
“ Applicable
Margin ” means in relation to any Loan, initially,
the greater of (i) 4.25 percent per annum and (ii) 0.50
percent per annum over the FRN Spread to Maturity at the Completion
Date; provided that:
(a) from the date falling six
months after the Completion Date up to the date falling nine months
after the Completion Date, the Applicable Margin shall be the
greater of (i) 4.75 percent per annum and (ii) 0.50
percent per annum over the FRN Spread to Maturity at the date
falling six months after the Completion Date;
(b) from the date falling
nine months after the Completion Date up to the Initial Maturity
Date, the Applicable Margin shall be the greater of (i) 5.25
percent per annum and (ii) 0.50 percent per annum over the FRN
Spread to Maturity at the date falling nine months after the
Completion Date; and
2
(c) at and from the Initial
Maturity Date to the Extended Maturity Date, the Applicable Margin
shall be 6.25 percent per annum.
“
Arrangers ” means the Mandated Lead Arrangers
and the Underwriters.
“ Asset
Sale ” means the disposal of an asset by a member of
the Group to a person who is not a member of the Group, other
than:
(a) where an asset (not being
shares or any other ownership interest in a person) is to be (and
is) replaced by another asset of or substantially similar type for
use in the Group’s business (being a fixed asset in the case
of a disposal of a fixed asset) within 12 months of the date of
disposal and pending such replacement the Net Proceeds of that
disposal are deposited in a holding account; or
(b) any Permitted
Disposal.
“ Assignment and
Acceptance ” shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the
Administrative Agent, in the form of Exhibit A or such other form
as shall be approved by the Administrative Agent.
“ Associated
Company ” of a person means (i) any other person
which is directly or indirectly controlled by, under common control
with or controlling such person or (ii) any other person
owning beneficially and/or legally directly or indirectly
20 percent or more of the equity interest in such person or
20 percent of whose equity interest is owned beneficially
and/or legally directly or indirectly by such person. For the
purposes of this definition the term “control” means
possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a person whether
through the ownership of interests or voting securities, by
contract or otherwise.
“ Austrian
Capital Maintenance Rules ” has the meaning given to
that term in Section 10.2.
“ Austrian
Guarantor ” means any Guarantor established under the
laws of Austria as a corporation ( Gesellschaft mit
beschränkter Haftung; Aktiengesellschaft ) or as a limited
partnership ( Kommanditgesellschaft ) with its general
partners ( Komplementäre ) being
corporations.
“
Authorization ” means an authorization,
consent, approval, resolution, license, exemption, filing,
notarization or registration.
“ Authorized
Officer ” means any officer of the Borrower
authorized to sign Utilization Notices and, in the case of the
Borrower or any other Obligor or Security Provider, any other
notices, requests or confirmations referred to in this Credit
Agreement or relating to the Bridge Loans granted
hereunder.
“ Bankruptcy
Law ” means (a) the U.S. Bankruptcy Code of 1978
or (b) any other law of the United States (or any political
subdivision thereof), Hungary (or any political subdivision
thereof), Romania (or any political subdivision thereof), the
Republic of Turkey, the European Union (or any political
subdivision thereof) or the laws of any other jurisdiction or any
political subdivision thereof relating to bankruptcy, insolvency,
winding up, liquidation, reorganization or relief of
debtors.
3
“ Base Case
Model ” means the banking base case model agreed
between the Borrower and the Arrangers.
“ Base
Currency ” means euro.
“ Base Currency
Equivalent ” means:
(a) for an amount expressed
or denominated in any currency other than the Base Currency, the
equivalent of that amount in the Base Currency converted at the
Agent’s Spot Rate of Exchange on the date of the relevant
calculation; and
(b) for an amount expressed
or denominated in the Base Currency, that amount.
“ beneficial
owner ” and “ beneficial
ownership ”, as used in the definition of
“Affected Party”, has the meaning as defined in Rule
13d-3 and Rule 13d-5 under the Exchange Act.
“ Board
” means the Board of Governors of the Federal Reserve System
of the United States or any successor.
“
Borrower ” has the meaning specified in the
preamble to this Credit Agreement.
“ Borrowed
Money ” means Indebtedness (including, for the
avoidance of doubt, but without double counting, any guarantees of
such Indebtedness) in respect of (i) money borrowed or raised
and debit balances at banks, (ii) any bond, note, loan stock,
debenture or similar debt instrument, (iii) acceptance or
documentary credit facilities, (iv) receivables sold or
discounted (otherwise than on a non-recourse basis),
(v) payments for assets or services acquired which provide for
such payments to be deferred for a period of 180 days or more
after the relevant assets or services were supplied and accepted,
(vi) hire purchase contracts, (vii) principal elements of
rental payments under Finance Leases, (viii) guarantees,
bonds, standby letters of credit or other instruments issued in
connection with the performance of contracts to the extent that the
same are treated as borrowings in accordance with the generally
accepted principles and practices used in the preparation of the
most recent audited financial statements of the Group delivered to
the Administrative Agent under this Credit Agreement
(ix) derivative transactions entered into in connection with
protection against or benefit from fluctuation in any rate or price
(and, when calculating the value of any derivative transaction,
only the marked to market value shall be taken into account) and
any other transaction (including without limitation forward sale or
purchase agreements and issues of redeemable shares) having the
commercial effect of a borrowing or raising of money entered into
for the purpose of financing a person’s operational or
capital requirements provided that in making any calculation of
Borrowed Money under this Credit Agreement no Indebtedness shall be
taken into account more than once.
“ Bridge Borrower
High Yield Notes ” means the high yield notes to be
issued by the Borrower to refinance the Bridge Loan.
“ Bridge Borrower
High Yield Notes Documents ” means the documentation
required to implement the issue of the Bridge Borrower High Yield
Notes, including without limitation, the Bridge Borrower High Yield
Notes, the Indenture and the guarantees.
“ Bridge Finance
Document ” means:
(a) this Credit Agreement as
may be amended from time to time;
4
(b) the Bridge Notes;
or
(c) any Related
Document.
“ Bridge Finance
Parties ” means the Lenders and the Administrative
Parties.
“ Bridge
Loan ” means a loan made by any Lender to the
Borrower pursuant to Section 2.1(a) the proceeds of which will
be applied as provided for in Section 2.1(c).
“ Bridge
Note ” means a promissory note of the Borrower in the
form attached as Exhibit B hereto evidencing the Bridge Loan and
(if applicable) the Term Loan of any Lender.
“ Budget
” means:
(a) In relation to the period
ending December 31, 2007, the Base Case Model in agreed form
to be delivered by the Borrower to the Administrative Agent
pursuant to Part 1 of Schedule 2; and
(b) In relation to any other
period, any budget delivered by the Borrower to the Administrative
Agent in respect of that period pursuant to
Section 5.3.
“ Business
Day ” means a day (other than a Saturday or a Sunday)
on which banks are open for general business in London and Budapest
and if on that day a payment in or a purchase of euro is to be
made, which is also a TARGET Day.
“ Capital
Stock ” means (a) in the case of a corporation,
corporate stock, (b) in the case of an association or business
entity, any and all shares, interests, participations, rights or
other equivalents (however designated) of corporate stock and
(c) in the case of a partnership or limited liability company,
partnership interests (whether general or limited) or membership
interests.
“ Cash
” means cash in hand (or in transit or in cash registers or
payments made by checks or debit cards or credit cards which are
yet to be received in cleared funds) and credit balances or amounts
on deposit with an Acceptable Bank which are freely transferable
and freely convertible and accessible by a member of the Group
within 90 days or held in a blocked account and not subject to any
Security (other than one arising under the Transaction Security
Documents).
“ Cash Equivalent
Investments ” means at any time:
(a) certificates of deposit
maturing within one year after the relevant date of calculation and
issued by an Acceptable Bank;
(b) any investment in
marketable debt obligations issued or guaranteed by the government
of the United States of America, the United Kingdom, any member
state of the European Economic Area or any Participating Member
State or by an instrumentality or agency of any of them having an
equivalent credit rating, maturing within one year after the
relevant date of calculation and not convertible or exchangeable to
any other security;
(c) debt securities maturing
within one year after the relevant date of calculation which are
not convertible or exchangeable into any other security, are rated
either A-1 or higher by S&P or Fitch or P-1 or higher by
Moody’s (or, if no rating is available in respect of the debt
securities, the issue of which has, in respect of its long-term
debt obligations, an equivalent rating);
5
(d) open market commercial
paper not convertible or exchangeable to any other
security:
(i) for which a recognized
trading market exists;
(ii) issued by an issuer
incorporated in the United States of America, the United Kingdom,
any member state of the European Economic Area or any Participating
Member State;
(iii) which matures within
one year after the relevant date of calculation; and
(iv) which has a credit
rating of either A-1 or higher by S&P or Fitch or P-1 or higher
by Moody’s, or, if no rating is available in respect of the
commercial paper, the issuer of which has, in respect of its
long-term unsecured and non-credit enhanced debt obligations, an
equivalent rating;
(e) bills of exchange issued
in the United States of America, the United Kingdom, any member
state of the European Economic Area or any Participating Member
State eligible for rediscount at the relevant central bank and
accepted by an Acceptable Bank (or any dematerialized
equivalent);
(f) any investment accessible
within 90 days in money market funds which have a credit rating of
either A-1 or higher by S&P or Fitch or P-1 or higher by
Moody’s and which invest substantially all their assets in
securities of the types described in sub-paragraphs (a) to
(e) above; or
(g) any other debt security
approved by the Majority Lenders,
in each case, to which any member of the
Group is beneficially entitled at that time and which is not issued
or guaranteed by any member of the Group or subject to any Security
(other than one arising under the Transaction Security Documents)
and is denominated and payable in freely transferable and freely
convertible currencies and the proceeds of which are capable of
being remitted to a member of the Group.
“ Change of
Control ” means:
(a) prior to a Primary
Offering, TDC ceases to own (directly or indirectly) more than 50
percent of the voting shares of HTCC;
(b) following a Primary
Offering, TDC ceases to own (directly or indirectly) more than 30
percent of the voting shares of HTCC and any person or persons
acting in concert owns a greater percentage of the voting shares of
HTCC than TDC;
(c) HTCC ceases to own
(directly or indirectly) 100 percent of the issued share capital of
the Borrower;
(d) the Borrower ceases to
own (directly or indirectly) 100 percent of the issued share
capital of the Major Companies (other than (i) 99.983 percent
of the issued share capital of Invitel and (ii) Euroweb
Romania);
6
(e) the Borrower ceases to
own (directly or indirectly) 95 percent of the issued share capital
of Euroweb Romania; or
(f) the occurrence of a
change of control event under the indenture governing the
€200 million aggregate principal amount Floating Rate
Senior Notes due 2013 issued by HTCC Holdco II B.V. and assumed by
the Borrower, the indenture governing the €142 million
aggregate principal amount of 10 3 / 4 % Senior Notes
due 2012 issued by the Borrower, the indenture governing the
€125 million aggregate principal amount of Floating Rate
Senior PIK Notes due 2013 initially issued by Invitel Holdings N.V.
and assumed by Holdco I B.V. and under the indenture governing any
high yield bond offering issued by the Borrower, HTCC or any
intermediate Holding Company (in each case, whether or not such
indenture is outstanding or in effect at the
time).
“ Clean-Up
Date ” means the date falling 135 days after the
Completion Date.
“
Collateral ” means any assets in which a
Security Interest has been granted (or is purported to be granted)
pursuant to any Transaction Security Document to secure all or a
part of the Obligations, the Loans or any other Bridge Finance
Document.
“
Commitment ” means:
(a) for any Lender falling
within paragraph (a) of the definition thereof, the relevant
amount set forth opposite such Lender’s name as set out on
Schedule 4 of this Credit Agreement and the amount of any other
Commitment which it acquires; and
(b) for any other Lender, the
amount of any Commitment which it acquires,
in each case to the extent
not cancelled, transferred or reduced under this Credit
Agreement.
“ Commitment
Letter ” means that letter dated December 19,
2007 by and among the Borrower and the Arrangers setting out the
Arrangers’ commitments related to the Loans.
“
Completion ” means the completion of the
Acquisition in accordance with clause 6 of the Acquisition
Agreement.
“ Completion
Date ” means the date of the Completion and the first
utilization of the Bridge Loan.
“ Consolidated
EBITDA ” means, in respect of each Quarterly Period
or Twelve Month Period, without regard to unrealized exchange
losses or gains, the Net Income of the HTCC Group plus any
depreciation, amortization, other non-cash expenses (excluding
pre-paid expenses), tax and interest expense, less any non-cash
income (excluding deferred income) and interest income less (to the
extent not already deducted in the calculation of Net Income) any
payments pursuant to paragraphs (d) or (f) of the
definition of Permitted Payments but (i) excluding any
extraordinary income (other than any such income directly related
to the performance by a member of the HTCC Group of its specific
obligations under any concession contract or any Telecommunications
Laws which may otherwise be included as extraordinary income under
the Accounting Principles), net of any tax paid or payable in
respect of such income, of the HTCC Group during the relevant
period and (ii) to the extent the same would otherwise be
deducted in calculating Net Income, adding back closing fees in
connection with the Existing High Yield Notes and/or the Existing
FRN Bonds and/or the Loans and/or the Bridge Borrower High Yield
Notes and obtaining the financing under the Senior Credit Agreement
and adding back transaction expenses in relation to the HTCC
Acquisition and the Acquisition all as determined in accordance
with the Accounting Principles
7
used in the preparation of and as shown
in the financial statements or Quarterly Management Accounts in
respect of such Quarterly Period or Twelve Month Period, prepared
and delivered to the Administrative Agent pursuant to
Section 5.1.
“ Conversion
Date ” means the date (if any) upon which the Bridge
Loans convert to Term Loans, pursuant to
Section 2.2.
“ Conversion
Default ” means the occurrence of any one or more of
the following: (a) the Borrower being subject to any default
under Section 8.11, Section 8.12(b), Section 8.13,
Section 8.14 and Section 8.15 (provided that for the
purposes of this definition, the cross-references in
Section 8.15 shall only include Section 8.11,
Section 8.12(b), Section 8.13 and Section 8.14),
(b) any Payment Default or (c) any default or potential
default relating to payment under the Senior Credit
Agreement.
“ Current
Assets ” means, at any relevant time, the aggregate
of the current assets (excluding Cash and Cash Equivalent
Investments) of the Group at such time which would fall to be
included as current assets in a consolidated balance sheet of the
Group drawn up at such time in accordance with the appropriate
accounting principles.
“ Current
Liabilities ” means, at any relevant time, the
aggregate of the current liabilities (excluding short term debt
(which shall include, for the avoidance of doubt, any long term
debt repayable within 12 months) and overdrafts) of the Group
at such time which would fall to be included as current liabilities
in a consolidated balance sheet of the Group drawn up at such time
in accordance with the appropriate accounting
principles.
“
Custodian ” means any receiver, interim
receiver, manager, trustee, assignee, liquidator, sequestrator,
custodian or similar official under any Bankruptcy Law.
“ Declared
Default ” means an Event of Default in respect of
which a notice of acceleration has been served.
“ Default
” means an Event of Default or any event or circumstance
which would, but for the expiry of a grace period, the giving of
notice or the making of any determination, in each case, under
ARTICLE IX, be an Event of Default; provided that any such
event which is subject to a qualification as to materiality, or
requires a determination to be made shall not constitute a Default
unless such qualification is satisfied or such determination is
made, as the case may be.
“ Disclosure
Letter ” has the meaning given to that term in the
Acquisition Agreement.
“ EBITDA
” has the same meaning as Consolidated EBITDA save that the
calculations shall apply in respect of a person and a period and
not the consolidated Group.
“
Encumbrance ” means any mortgage, charge
(whether fixed or floating), pledge, lien, hypothecation,
assignment by way of security, trust arrangement or security
interest of any kind securing any obligation of any person
(including without limitation title transfer and/or retention
arrangements having similar effect).
“ Engagement
Letter ” means that certain engagement letter, dated
as of December 19, 2007, among the Borrower and the Arrangers,
as such agreement may be amended from time to time.
“ Environmental
Claim ” means any claim, notice of violation,
prosecution, demand, action, official warning, abatement or other
order (conditional or otherwise), relating to Environmental Matters
and any notification or order requiring compliance with the terms
of any Environmental License or Environmental Law in each case by
any competent authority, court or regulatory body.
8
“ Environmental
Laws ” means all or any laws, statutes, regulations,
treaties, and judgments of any governmental authority or agency or
any regulatory body in any jurisdiction in which any member of the
Group is formed or carries on business relating to Environmental
Matters applicable to such member of the Group.
“ Environmental
License ” includes any permit, license,
authorization, consent or other approval required at any time by
any Environmental Law.
“ Environmental
Matters ” means (i) any generation, deposit,
disposal, keeping, treatment, transportation, transmission,
handling or manufacture of any waste or any Relevant Substance,
(ii) nuisance, noise, defective premises, health and safety at
work or elsewhere and (iii) the pollution, conservation or
protection of the environment (both natural and built) or of man or
any living organism supported by the environment (both natural and
built).
“ Escrow
Agent ” has the meaning specified in the Escrow
Agreement.
“ Escrow
Agreement ” means the escrow agreement relating to
the escrow of the Exchange Notes to be entered into among the
Borrower, the Guarantors, the Administrative Agent, on behalf of
the Lenders, and the Escrow Agent.
“ EURIBOR
” means with respect to an Interest Period of a Loan (or any
other period by reference to which interest on a Loan as an overdue
amount is calculated):
(a) the applicable Screen
Rate; or
(b) if no Screen Rate is
available for that Interest Period of that Loan or overdue amount,
the arithmetic mean (rounded upward to four decimal places) of the
rates, as supplied to the Administrative Agent at its request,
quoted by the Reference Banks to leading banks in the European
interbank market,
as of 11:00 a.m. (Brussels time) on the
Rate Fixing Day for the offering of deposits in euro for a period
comparable to the relevant Interest Period (or other such
period).
“ euro
” or “ € ” means the
single currency of the Participating Member States.
“ Euroweb
Romania ” means S.C. Euroweb Romania S.A.
“ Exchange
Act ” means the U.S. Securities Exchange Act of
1934.
“ Exchange Note
Indenture ” means, the indenture relating to the
Exchange Notes, among the Borrower, the Guarantors, as guarantors,
and the Exchange Note Trustee, in agreed form.
“ Exchange Note
Interest Rate ” means a rate equal to 11.5 percent
per annum (excluding default interest) at any time.
“ Exchange Note
Trustee ” means, on any date of determination, the
trustee under the Exchange Note Indenture.
9
“ Exchange
Notes ” means the exchange notes to be issued
pursuant to Section 2.3(a) and to be governed by the Exchange
Note Indenture.
“ Exchange
Notice ” has the meaning specified in
Section 2.3(a).
“ Excluded
Taxes ” means with respect to any Lender, or any
other recipient of any payment to be made by or on account of any
obligation of the Borrower or any Guarantor hereunder, Taxes
imposed (or measured by) its overall net income, profits or gains
by the jurisdiction or jurisdictions under the laws of which such
recipient is organized or is resident for tax purposes or in which
its applicable lending office is located.
“ Existing FRN
Bonds ” means the €200 million aggregate
principal amount Floating Rate Senior Notes due 2013 issued by HTCC
Holdco II B.V. and assumed by the Borrower.
“ Existing FRN
Funding Loans ” means the Euro 55,040,540 and Euro
59,501,657 loans owed by Invitel to the Borrower representing part
of the proceeds of the Existing FRN Bonds and which bear interest
at the same rate as the Existing FRN Bonds together with an
additional margin of not more than 0.22 percent per
annum.
“ Existing FRN
Funding Loan Agreement ” has the meaning given to it
in the Intercreditor Deed.
“ Existing FRN
Indenture ” means the indenture dated April 27,
2007, as amended from time to time, governing the Existing FRN
Bonds.
“ Existing FRN
Offering Documents ” means documents comprising of
the indenture, the offering memorandum, the Existing FRN Funding
Loan Agreement and the Existing FRN Security Documents issued or
(as the case may be) entered into in relation to the Existing FRN
Bonds.
“ Existing FRN
Security Documents ” means (i) the fourth
ranking agreed form security document entered or to be entered into
in favor of the security trustee under the Senior Credit Agreement
for and on behalf of the Existing FRN Trustee over the shares of
the Borrower; (ii) the third and fourth ranking agreed form
security documents entered or to be entered into in favor of the
security trustee under the Senior Credit Agreement for and on
behalf of the Existing FRN Trustee over the Existing High Yield
Funding Loan and the Existing FRN Funding Loans; (iii) the
additional third and fourth ranking agreed form security documents
entered or to be entered into in favor of the security trustee
under the Senior Credit Agreement for and on behalf of the Existing
FRN Trustee over the Funding Loans; (iv) the fourth and fifth
ranking agreed form security document entered or to be entered into
in favor of the security trustee under the Senior Credit Agreement
for and on behalf of the Existing FRN Trustee over the Funding
Loans; (v) the Original Obligor Share Securities in respect of
shares in Invitel (as of the effectiveness of the amendments to be
made thereto pursuant to the Second Original Obligor Share
Securities Amendment Agreements); (vi) the second ranking
agreed form share pledge entered or to be entered into in favor of
the security trustee under the Senior Credit Agreement on behalf of
the Existing FRN Trustee and the Existing High Yield Trustee over
the shares in Euroweb Romania; (vii) the HTCC Opco Share
Security (as of the effectiveness of the amendments to be made
thereto pursuant to the HTCC Opco Share Security Agreement);
(viii) the Original Obligor Share Securities Amendment
Agreements; (ix) the Second Original Obligor Share Securities
Amendment Agreements; (x) the Second HTCC Opco Share Security
Agreement; (xi) the second ranking agreed form share pledges
entered into or to be entered into in favor of the security trustee
under the Senior Credit Agreement on behalf of the Existing FRN
Trustee, the Existing High Yield Trustee and the Security Agent
over the shares in Memorex; (xii) the second ranking agreed
form share pledge entered into or to be entered into in favor of
the security trustee under the Senior Credit Agreement on behalf of
the Existing FRN Trustee, the Existing High
10
Yield Trustee and the Security Agent
over the shares in the Turkish Subsidiary; (xiii) the Invitel
Telecom Share Security, (xiv) any pledge or (as the case may
be) charge over the shares of any other obligor provided that
(a) such shares are simultaneously (by way of a first ranking
pledge) charged or (as the case may be) pledged to the Senior
Creditors and (b) such security is at all times second ranking
by and subject to the terms of the Intercreditor Deed; and
(xv) the Intercreditor Deed.
“ Existing FRN
Trustee ” means the FRN Note Trustee, as defined in
the Intercreditor Deed, or any successor trustee acting for the
benefit of and on behalf of the holders of the Existing FRN Bonds
provided that such successor trustee simultaneously therewith
becomes a party to the Intercreditor Deed.
“ Existing High
Yield Funding Loan ” means the Euro 140,128,440 loans
(representing the principal amount at maturity of Euro 142,000,000,
issued at a discount of 98.682 percent) made by the Borrower to
Invitel representing the proceeds of the Existing High Yield Notes
provided that such funding loan bears interest at the same rate as
the Existing High Yield Notes together with an additional margin of
not more than 0.22 percent per annum.
“ Existing High
Yield Funding Loan Agreement” has the meaning given
to it in the Intercreditor Deed.
“ Existing High
Yield Notes ” means the Euro 142,000,000 in aggregate
principal amount 10 3
/ 4 % senior notes issued by Magyar Telecom
B.V., maturing on August 15, 2012.
“ Existing High
Yield Offering Documents ” means documents comprising
of the indenture, the offering memorandum, the Existing High Yield
Funding Loan Agreement and the Existing High Yield Security
Documents issued or (as the case may be) entered into in relation
to the Existing High Yield Notes.
“ Existing High
Yield Security Documents ” means (i) the second
ranking agreed form security document entered into in favor of the
security trustee under the Senior Credit Agreement for and on
behalf of the Existing High Yield Trustee over the shares of the
Borrower; (ii) the second ranking agreed form security
documents entered into in favor of the security trustee under the
Senior Credit Agreement for and on behalf of the Existing High
Yield Trustee over the Existing High Yield Funding Loan and the
Existing FRN Funding Loans; (iii) the additional second
ranking agreed form security documents entered into in favor of the
security trustee under the Senior Credit Agreement for and on
behalf of the Existing High Yield Trustee over the Funding Loans;
(iv) the fourth ranking agreed form security documents entered
into in favor of the security trustee under the Senior Credit
Agreement for and on behalf of the Existing High Yield Trustee over
the Existing High Yield Funding Loan and the Existing FRN Funding
Loans; (v) the fourth and fifth ranking agreed form security
documents entered into in favor of the security trustee under the
Senior Credit Agreement for and on behalf of the Existing High
Yield Trustee over the Funding Loans; (vi) the Original
Obligor Share Securities in respect of shares in the Borrower (as
of the effectiveness of the amendments to be made thereto pursuant
to the Second Original Obligor Share Securities Amendment
Agreements); (vii) the second ranking share pledge entered or
to be entered into on behalf of the security trustee under the
Senior Credit Agreement in favor of the Existing High Yield Trustee
and the Existing FRN Trustee over the shares in Euroweb Romania;
(viii) the HTCC Opco Share Security (as of the effectiveness
of the amendments to be made to thereto pursuant to the Second HTCC
Opco Share Security Agreement); (ix) the Original Obligor
Share Securities Amendment Agreements; (x) the Second Original
Obligor Share Securities Amendment Agreements; (xi) the Second
HTCC Opco Share Security Agreement, (xii) the second ranking
agreed form share pledge entered into or to be entered into in
favor of the security trustee under the Senior Credit Agreement on
behalf of the Existing FRN Trustee, the Existing High Yield Trustee
and the Security Agent over the shares in Memorex; (xiii) the
second ranking agreed form share pledge entered into or to be
entered into in favor of
11
the security trustee under the Senior
Credit Agreement on behalf of the Existing FRN Trustee, the
Existing High Yield Trustee and the Security Agent over the shares
in the Turkish Subsidiary; (xiv) the Invitel Telecom Share
Security, (xv) any pledge or (as the case may be) charge over
the shares of any other obligor provided that (a) such shares
are simultaneously (by way of a first ranking pledge) charged or
(as the case may be) pledged to the Senior Creditors and
(b) such security is at all times second ranking by and
subject to the terms of the Intercreditor Deed; and (xvi) the
Intercreditor Deed.
“ Existing High
Yield Trustee ” means The Bank of New York of One
Canada Square, London E14 5AL or any successor trustee acting for
the benefit of and on behalf of the holders of the Existing High
Yield Notes provided that such successor trustee simultaneously
therewith becomes a party to the Intercreditor Deed.
“ Existing
Transaction Debt ” means (i) the Existing High
Yield Notes, any bridge facility financing the repurchase of the
Existing High Yield Notes and any high yield bonds issued to
refinance such bridge facility and (ii) the Existing FRN
Bonds, any bridge facility financing the repurchase of the Existing
FRN Bonds and any high yield bonds issued to refinance such bridge
facility.
“Extended
Maturity Date” means the date falling seven years
after the Initial Maturity Date.
“ Facility
Office ” means the office(s) notified by a Lender to
the Administrative Agent:
(a) on or before the date it
becomes a Lender; or
(b) by not less than five
Business Days’ notice,
as the office(s) through which it will
perform its obligations under this Credit Agreement.
“ Fee
Letter ” means that certain Fee Letter, dated
December 19, 2007 between the Borrower and the
Arrangers.
“ Finance
Document ” means this Credit Agreement, any Accession
Document, any Assignment and Acceptance, the Engagement Letter, any
Fee Letter, any Hedging Documents, the Intercreditor Deed, the
Intercreditor Deed Supplemental Deed, the Second Intercreditor Deed
Supplemental Deed, any Transaction Security Document, any
Utilization Notice and any other document designated as a
“Finance Document” by the Administrative Agent and the
Borrower.
“ Finance
Lease ” means a lease treated as a finance lease
pursuant to the Accounting Principles.
“ Finance
Parties ” means the Bridge Finance Parties and the
Senior Finance Parties.
“ Financial
Year ” means the annual accounting period of the
Group ending on December 31 each year.
“ Fitch
” means Fitch Ratings Ltd. or any successor to its rating
business.
“ FRN Spread to
Maturity ” shall mean the spread over EURIBOR to
maturity derived from the average of the prices quoted in respect
of the Existing FRN Bonds by the Arrangers that are executable for
Euro 5,000,000 or more. The FRN Spread to Maturity shall be
calculated by the Administrative Agent and shall be binding on the
parties.
12
“ Funding
Loan ” means the up to Euro 61,000,000 loan owed by
Invitel to the Borrower and the up to Euro 39,000,000 loan owed by
Memorex to the Borrower each representing part of the proceeds of
the Bridge Loans and which bear interest at the same rate as the
Bridge Loans (or, after the issuance of the Bridge Borrower High
Yield Notes, the Bridge Borrower High Yield Notes) plus a margin of
0.11 percent.
“ Funding Loan
Agreement ” has the meaning given to the term
“Subordinated Funding Loan Agreement” in the
Intercreditor Deed.
“ Funds Flow
Statement ” means the statement in the agreed form
prepared by the Borrower showing all payments to and/or by members
of the Group in connection with the Bridge Loan and the Acquisition
and the flow of funds occurring on and immediately before and after
the Completion Date.
“ Governmental
Entity ” means any nation or government, any state or
political subdivision or any agency, authority, regulatory body,
bureau, central bank, commission, department or instrumentality
thereof, or any court, tribunal, grand jury or arbitrator, or any
securities exchange and any self-regulatory organization in each
case whether foreign or domestic.
“ Group
” means the Borrower and its Subsidiaries from time to
time.
“ Group Structure
Chart ” means a corporate structure chart in relation
to the Group in the agreed form.
“
Guarantee ” means the guarantee by each of the
Guarantors pursuant to ARTICLE X hereof.
“ Guaranteed
Obligations ” has the meaning specified in
Section 10.1(a).
“
Guarantors ” means the Original Guarantors and
each Additional Guarantor.
“ Hedging
Debt ” has the meaning given to it in the
Intercreditor Deed.
“ Hedging
Documents ” has the meaning given to it in the
Intercreditor Deed.
“ Holdco
I ” means HTCC Holdco I B.V., a company incorporated
in The Netherlands with its registered office at Locatellikade 1,
1076 AZ, Amsterdam, The Netherlands.
“ Holding
Company ” of any other person, means a person in
respect of which that other person is a Subsidiary.
“ HTCC
” means Hungarian Telephone and Cable Corp.
“ HTCC
Acquisition ” means the acquisition by Holdco I of
the Parent on the terms of the HTCC Acquisition
Documents.
“ HTCC
Acquisition Agreement ” means the sale and purchase
agreement between HTCC and Invitel Holdings N.V. dated
8 January 2007 relating to the HTCC Acquisition.
“ HTCC
Acquisition Documents ” means the HTCC Acquisition
Agreement and any other document designated as an “HTCC
Acquisition Document” by the Facility Agent and the
Parent.
“ HTCC Completion
Date ” means the date of completion of the HTCC
Acquisition in accordance with clause 5 of the HTCC Acquisition
Agreement.
13
“ HTCC
Group ” means HTCC and its Subsidiaries.
“ HTCC Opco Share
Security ” has the meaning given to it in the Senior
Credit Agreement.
“ HTCC Operating
Company ” means Invitel Technocom.
“ Hungarian
Account Charges Amendment Agreements ” means the
amendment agreements entered into by each Original Obligor and the
Security Trustee in relation to the Original Obligor Account
Charges governed by Hungarian law.
“ IFRS
” means International Financial Reporting Standards issued
and/or adopted by the International Accounting Standards
Board.
“ Immaterial
Subsidiaries ” means any member of the HTCC Group
(i) whose assets or revenues or EBITDA are less than
two percent of the HTCC Group’s consolidated assets or
consolidated revenues or Consolidated EBITDA, determined by
reference to the most recent Quarterly Management Accounts in
respect of a Quarter Period ending on a Quarter Day delivered to
the Administrative Agent under this Credit Agreement, provided that
if such Immaterial Subsidiaries taken together on such Quarter Day
exceed five percent of the HTCC Group’s consolidated
assets or consolidated revenues or Consolidated EBITDA then the
Immaterial Subsidiary whose total revenues on such Quarter Day are
the highest shall be deemed to be a Material Subsidiary for the
purpose of this Credit Agreement and (ii) who has not provided
a subordinated guarantee under the Existing High Yield Offering
Documents or under the Existing FRN Offering Documents, or in
respect of the Bridge Finance Documents. In determining Immaterial
Subsidiaries and Material Subsidiaries for the purpose of this
definition, following any acquisition by a member of the HTCC
Group, the consolidated assets, the consolidated revenues and
Consolidated EBITDA of the HTCC Group shall be adjusted to take
account of the revenues, the assets and the EBITDA attributable to
the acquisition in respect of the Quarterly Period ending on such
Quarter Day.
“
Indebtedness ” means any obligation for the
payment or repayment of money, whether as principal or as surety
and whether present or future, actual or contingent.
“ Indemnified
Party ” has the meaning specified in
Section 12.1.
“ Indemnifying
Party ” has the meaning specified in
Section 12.1.
“
Indenture ” means the indenture in relation to
the Bridge Borrower High Yield Notes.
“ Information
Package ” means collectively, the Base Case Model,
the Reports and the bank presentation dated 11 January
2008.
“Initial Maturity
Date” means the one-year anniversary of the
Completion Date.
“ Intellectual
Property Rights ” means any patent, trade mark,
service mark, registered design, trade name or copyright required
to carry on the business of any member of the Group.
“ Intercreditor
Deed ” means the intercreditor deed dated
6 August 2004, entered into by, inter alios , the
security trustee under the Senior Credit Agreement, Matel Holdings
N.V., the obligors under the Senior Credit Agreement, the Hedge
Counterparties (as such term is defined in the Intercreditor Deed)
and the Existing High Yield Trustee (as such term is defined in the
Intercreditor Deed) as amended and restated on 27 April 2007
pursuant to the Intercreditor Deed Supplemental Deed and as amended
and restated (or to be amended and restated) pursuant to the Second
Intercreditor Deed Supplemental Deed.
14
“ Intercreditor
Deed Supplemental Deed ” means the supplemental deed
dated 27 April 2007 amending and restating the Intercreditor
Deed between, inter alios , the security trustee under the
Senior Credit Agreement, Matel Holdings N.V., the obligors under
the Senior Credit Agreement, the Hedge Counterparties (as such term
is defined in the Intercreditor Deed), the Existing High Yield
Trustee, the Security Agent and the Existing FRN Note
Trustee.
“ Interest
Payment Date ” means (a) the last day of each
Interest Period, (b) the Maturity Date and (c) the date
of any prepayment of all or any portion of the principal of the
Loans.
“ Interest
Period ” means, in respect of any Loan, (a) in
the case of the first Interest Period (if any) applicable to the
Bridge Loans, the period commencing on and including the Completion
Date and ending on the numerically corresponding date in the third
month thereafter, and (b) in the case of each subsequent
Interest Period, the period beginning on the last day of the prior
Interest Period and ending on the numerically corresponding date in
the third month thereafter; provided, however , that if any
Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended until the next succeeding
Business Day unless the next Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the
next preceding Business Day. Notwithstanding the foregoing, no
Interest Period in respect of the Bridge Loans may extend beyond
the Maturity Date and each Interest Period that would otherwise
commence before and end after the Maturity Date shall end on the
Maturity Date.
“ Intergroup Loan
Agreements ” means any loan agreements entered into
between members of the Group (including, without limitation, the
Existing High Yield Funding Loan Agreement, the Existing FRN
Funding Loan Agreements and the Funding Loan
Agreements).
“ Invitel
” means Invitel Zrt.
“ Invitel
Technocom ” means Invitel Technocom
Távközlési Korlátolt Felelõsségû
Társaság, a company incorporated in Hungary with
registration number Cg. 14-09-305167.
“ Invitel
Telecom ” means Invitel Telecom Kft., a company
incorporated under the laws of Hungary with registered number Cg.
01-09-695967.
“ Invitel Telecom
Share Security ” has the meaning given to it in the
Senior Credit Agreement.
“ IPO
Subsidiary ” means any newly incorporated Subsidiary
of the Borrower, the voting and economic interest of which is held
100 percent by the Borrower and which is incorporated in
Hungary and created solely for the purpose of acting (directly or
indirectly) as a 100 percent Holding Company of the Group in
connection with an initial public offering of shares.
“ Joint
Venture ” means any joint venture entity, whether a
company, unincorporated firm, undertaking, association, joint
venture or partnership or any other entity.
“ Judgment
Currency ” has the meaning specified in
Section 14.11.
“ Lenders
” means (a) each person that has executed a counterpart
to this Credit Agreement (other than an Obligor and other than any
such person that has ceased to be a party hereto pursuant to an
Assignment and Acceptance) and (b) any person that has become
a party hereto pursuant to an
15
Assignment and Acceptance;
provided that, neither the Borrower nor any of its
Affiliates shall be included in the definition of Lenders for
purposes of any consent, waiver, amendment or other vote taken by
the Lenders under this Agreement.
“
Licenses ” means (i) the Universal Service
Agreements, any notifications under the Hungarian Act C of 2003 on
electronic communications, the Emergency Romanian Government
Ordinance no. 79/2002 on the general communications regulatory
framework, approved with amendments by law no. 591 of
29 October 2002, as subsequently amended and completed, the
Turkish Telegraph and Telephone Law No. 406, the Turkish Radio
Law No. 2813, and the Turkish Regulation on Authorization of
Telecommunication Services and Infrastructures and any other
secondary legislation issued by the Turkish Telecommunications
Authority, (ii) any license issued by the Hungarian
Communications Authority, the Romanian National Regulatory
Authority for Communications and Information Technology, the
Turkish Telecommunications Authority and any replacement of any of
the same required by the Group, and (iii) any additional or
replacement concession or similar contracts under any
Telecommunications Laws applicable in Austria, Hungary, Romania and
Turkey to carry on the Telecoms Business of the Group.
“ Loan
” means a Bridge Loan or a Term Loan.
“ Major
Companies ” means Invitel Technocom, Invitel, Invitel
Telecom and Euroweb Romania.
“ Major Event of
Default ” has the meaning specified in
Section 6.3(c)(iii).
“ Major
Representation ” has the meaning specified in
Section 6.3(c)(i).
“ Major
Undertaking ” has the meaning specified in
Section 6.3(c)(ii).
“ Majority
Lenders ” means, at any time, Lenders holding at
least a majority of the then aggregate unpaid principal balance of
the Loans, or, if no such principal amount is then outstanding,
Lenders having at least a majority of the total Commitments;
provided that, for purposes hereof, neither the Borrower nor
any of its Affiliates shall be included in (a) the Lenders
holding such amount of the Loans or having such amount of the
Commitments or (b) determining the aggregate unpaid principal
amount of the Loans or the total Commitments.
“ Mandated Lead
Arrangers ” has the meaning specified in the preamble
to this Credit Agreement.
“ Mandatory
Cost ” means the percentage rate per annum
calculated by the Administrative Agent in accordance with Schedule
3.
“ Market
Disruption Event ” has the meaning specified in
Section 2.14(a).
“ Market
Transaction ” has the meaning specified in
Section 2.5(b).
“ Material
Adverse Effect ” means anything which is materially
adverse to:
(a) the business, assets or
financial condition of the Group taken as a whole;
(b) the ability of the
Obligors (taken as a whole) to comply with any of their payment
obligations under any of the Finance Documents; or
16
(c) the validity or
enforceability of any Security expressed to be created pursuant to
any Transaction Security Document, in a manner not contemplated by
the Reservations or the Perfection Requirements, which is
reasonably likely to materially adversely affect the interests of
the Lenders,
and, in respect of any event or
circumstance, only the net effect on the Group of event or
circumstance shall be considered, taking into account (without
limitation) any counterclaim or right of counterclaim or set-off of
any member of the Group and/or any anticipated proceeds receivable
by any member of the Group from any insurance, warranty or other
claim in respect thereof.
“ Material
Group ” means the Borrower and its Material
Subsidiaries from time to time.
“ Material
Subsidiary ” means all Subsidiaries of the Borrower,
other than the Immaterial Subsidiaries.
“ Maturity
Date ” means the Initial Maturity Date or Extended
Maturity Date, as the case may be.
“ Memorex
” means Memorex Telex Communications AG a company
incorporated under the laws of Austria with registered number FN
99090 x.
“ Memorex
Shareholder Squeeze Out ” means the acquisition by
Invitel of all of the remaining shares in Memorex, comprising 4.35
percent of the shares in Memorex owned by certain minority
shareholders, based on a squeeze out following the Completion Date
in accordance with Austrian law.
“
Moody’s ” means Moody’s Investors
Service Limited or any successor to its ratings
business.
“ Necessary
Authorizations ” means all approvals, authorizations
and licenses (other than the Licenses) from, all rights granted by
and all filings, registrations and agreements with any person
including, without limitation, any government or other regulatory
authority necessary in order to enable each member of the Group to
carry out the Telecoms Business which is carried on at the relevant
time.
“ Net
Proceeds ” means the cash proceeds (and if the
recipient is not a wholly-owned subsidiary of a member of the
Group, the proceeds proportionate to the interest held by the Group
in the recipient) of any disposal or insurance claim after
deducting:
(a) fees costs and expenses
incurred by any member of the Group with respect to that disposal
or claim to persons who are not members of the Group (including
without limitation bonus payments to management of the disposed
business);
(b) any tax incurred and
required to be paid by, and any tax which is or reserved for by,
the seller or claimant in connection with that disposal or claim
(as reasonably determined by the seller or claimant) or the
transfer of the proceeds thereof intra-Group;
(c) amounts retained to cover
anticipated liabilities reasonably expected to arise in connection
with the disposal; and
(d) costs of closure,
relocation, reorganization and restructuring, and costs incurred
preparing the asset for disposal.
“ New
Equity ” means the proceeds of a subscription for
shares in the Borrower or any other form of equity contribution to
the Borrower.
17
“ New York
Court ” has the meaning specified in
Section 14.5.
“ Net Working
Capital ” means, at any time, the aggregate of the
Current Assets of the Group at such time less the aggregate of the
Current Liabilities of the Group at such time.
“
Non-Obligor ” means a member of the Group which
is not an Obligor.
“ Obligation
Currency ” has the meaning specified in
Section 14.11.
“
Obligations ” means all now existing and
hereafter arising obligations and liabilities of any of the
Obligors to any and all of the Lenders arising under or in
connection with the Bridge Finance Documents, whether absolute or
contingent, and whether for principal, interest, penalties,
premium, fees, indemnifications, reimbursements, damages, or
otherwise and specifically including post-petition interest
(whether or not an allowable claim).
“ Obligor
” means each of the Borrower and any Guarantor.
“ Officer
” means, with respect to any person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief
Operating Officer, the Chief Financial Officer, the Treasurer, any
Assistant Treasurer, the Controller, the Secretary, Vice-President
or a Director of such person.
“ Officers’
Certificate ” means a certificate signed on behalf of
either the Borrower or any Guarantor by two Officers (or, in the
case of the Borrower, by the sole director of the Borrower), one of
whom must, in the case of any Guarantor, be the Principal Executive
Officer, the Principal Finance Officer, the Treasurer or the
Principal of such Guarantor.
“ Original
Financial Statements ” means the audited financial
statements of Invitel, the audited consolidated financial
statements of the Group and the audited consolidated financial
statements of the HTCC Group in respect of the financial year ended
31 December 2006.
“ Original
Guarantor ” has the meaning specified in the preamble
to this Credit Agreement.
“ Original
Lenders ” means Merrill Lynch International Bank
Limited, London Branch and BNP Paribas.
“ Original
Obligor ” means the Borrower or an Original
Guarantor.
“ Original
Obligor Share Securities ” has the meaning specified
in the Senior Credit Agreement.
“ Original
Obligor Share Securities Amendment Agreements
” has the meaning specified in the Senior Credit
Agreement.
“ Original
Shareholder ” means Vivendi Telecom International
S.A., a société anonyme incorporated under the laws of
France with its registered office at 42 avenue de Friedland,
75008 Paris, France.
“ Other
Taxes ” has the meaning specified in
Section 2.10(b).
“ Parent
” means Matel Holdings N.V. (formerly Telemark N.V.), a
limited liability company incorporated under the laws of
Netherlands Antilles (Registered number: 86225) with its registered
address at Schottegatweg Oost 44, Willemstad Curaçao,
Netherlands Antilles.
18
“ Parent
Group ” means the Parent and its Subsidiaries from
time to time.
“ Parent Loan
Agreements ” means any loan agreements between the
Parent as lender and the Borrower.
“ Participating
Member State ” means a member state of the European
Community that adopts or has adopted the euro as its lawful
currency under the legislation of the European Community for
Economic Monetary Union.
“
Participants ” has the meaning specified in
Section 7.4(a).
“ Payment
Default ” means (a) any Default under
Section 8.2, (b) any matured or unmatured default under
the analogous provisions of any of the Finance Documents or
(c) any payment default under the Fee Letter.
“ Perfection
Requirements ” means the making or the procuring of
the appropriate registrations, filing, endorsements, notarization,
stampings and/or notifications of the Transaction Security
Documents and/or the Transaction Security created
thereunder.
“ Permanent
Securities ” means any Permanent Securities as
defined in the Engagement Letter.
“ Permitted
Borrowings ” means:
(a) any Borrowed Money
arising hereunder or under the Finance Documents;
(b) any Borrowed Money
approved by the Administrative Agent (acting on the instruction of
the Majority Lenders);
(c) any Borrowed Money
included within Permitted Intra-Group Transactions, Permitted Loans
or Permitted Guarantees;
(d) any Borrowed Money
arising under the interest and/or currency rate protection
arrangements referred to in Section 4.27;
(e) arising under any cash
pooling or cash management arrangement but for so long as any such
arrangement which exceeds Euro 1,000,000 does not permit credit
balances of Obligors to be netted or set off against debt balances
of members of the Group which are not Obligors;
(f) arising under any
arrangements entered into between members of the Group which
arrangements are referred to in the Steps Paper or the Structure
Memorandum;
(g) arising under any netting
or set-off 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;
(h) any Subordinated
Shareholder Debt;
(i) any Borrowed Money
arising under the Senior Credit Agreement (provided that in the
event the proceeds of any Permitted Disposal are used to prepay the
Senior Credit Agreement, such amounts prepaid may not be
re-borrowed pursuant to this paragraph (i));
19
(j) any Borrowed Money
arising under the Existing High Yield Notes or the Existing FRN
Bonds provided that such Borrowed Money is at all times ranked
(subject to the terms of the Intercreditor Deed and the Transaction
Security Documents entered into by the Borrower) pari passu with
the obligations of the Borrower under the Guarantee by and subject
to the terms of the Intercreditor Deed;
(k) arising under the Finance
Leases of Memorex, provided such Finance Leases exist on the date
of this Credit Agreement;
(l) any Borrowed Money
arising under the Permanent Securities or any other refinancing of
the Loans pursuant to the Engagement Letter; and
(m) any Borrowed Money of the
Group (including Borrowed Money arising under Finance Leases other
than the Finance Leases of Memorex permitted pursuant to paragraph
(j) above) not within paragraphs (a) to (k) above,
not exceeding at any time in aggregate Euro 25,000,000 or its
equivalent.
“ Permitted
Disposals ” means:
(a) the application of cash
in (i) the acquisition of assets or services in the ordinary
course of business, not, in any such case, prohibited by the terms
of this Credit Agreement or any Transaction Security Document,
(ii) the making of investments or capital expenditure
permitted by Section 4.26 or (iii) the repayment of
Permitted Borrowings and the servicing thereof provided that the
same is not prohibited or otherwise restricted by the terms of this
Credit Agreement and/or the Intercreditor Deed;
(b) any disposals approved by
the Administrative Agent (acting on the instructions of the
Majority Lenders);
(c) the disposal of any
unnecessary or obsolete assets;
(d) the disposal of assets on
bona fide arm’s length commercial terms in the ordinary
course of business provided that the proceeds of the disposal are
applied in mandatory prepayment of the Loans under
Section 2.5;
(e) the disposal of the
assets of an Immaterial Subsidiary as part of any voluntary solvent
proceeding which corresponds with, or has an effect equivalent or
similar to, any of those mentioned in Section 8.10 to
Section 8.14 inclusive, provided that the Borrower notifies
the Administrative Agent of the disposal and the proceeds of the
disposal are applied in mandatory prepayment of the Loans under
Section 2.5;
(f) the disposal of any
shares in any of Pécsi Hirközlési Rt.,
Székesfehérvári Hírközlési Kft or
CableNet Rt.;
(g) to the extent that such
disposal is not, and will not lead to, any breach of law the
disposal by V-holding of its shares in Invitel to the Borrower
provided that such shares remain at all times charged and/or
pledged to the Security Agent pursuant to the Transaction Security
Documents;
(h) any disposals included
within Permitted Intra-Group Transactions;
20
(i) the disposal of shares of
any IPO Subsidiary provided that, if it is required, the proceeds
of the shares are applied in mandatory prepayment of the Loans
under Section 2.5;
(j) a disposal of trading
assets made by any member of the Group in the ordinary course of
trading of the disposing entity;
(k) a disposal of any asset
from an Obligor to a member of the Group which is not an Obligor
provided that the aggregate value of all assets so transferred (net
of the value of any assets transferred from a member of the Group
which is not an Obligor to an Obligor) does not exceed Euro
1,000,000 (or its equivalent) in any financial year of the
Borrower;
(l) a disposal constituted by
a license of Intellectual Property entered into in the ordinary
course of business or for the purposes of managing the brand
portfolio of the Group, but (in the case of any exclusive license)
only if the relevant Intellectual Property is no longer required
for the business or operation of the disposing person;
(m) a disposal which is a
lease or license of real property in the ordinary course of
business;
(n) a disposal referred to in
the Steps Paper or the Structure Memorandum;
(o) a disposal arising as a
result of any Permitted Encumbrance;
(p) a disposal of receivables
on a non-recourse basis where the net consideration receivable
(when aggregated with the net consideration receivable for any
other such disposal in the same financial year of the Group) does
not exceed Euro 3,000,000 (or its equivalent) in any financial year
of the Group;
(q) the sale or other
disposal of defaulted accounts receivables in the ordinary course
of business where such sale or disposal is not as part of an
accounts receivables financing transaction and where such sale or
disposal is on non-recourse terms to the Group;
(r) a disposal of fixed
assets where the proceeds of disposal are applied, committed to be
so applied or designated by the board of directors of the Borrower
to be so applied within 12 months of that disposal or committed to
be used within 12 months of receipt to (i) purchase
replacement fixed assets used or useful in the business of the
Group or (ii) make a Permitted Investment (provided that, in
the case of a commitment or designation, they are then so applied
within 18 months of receipt of such proceeds);
(s) any disposal of the real
property situated at Szt István tér 1,
Békéscsaba, Land Registry No. Belterület 2 or the
duct in Székesfehérvár or Pécs owned by the
Borrower;
(t) a disposal of assets
(other than shares or businesses), in exchange for other assets
reasonably comparable or superior as to type, value or
quality;
(u) a disposal of Cash or
Cash Equivalent Investments for Cash or other Cash Equivalent
Investments;
(v) disposals undertaken as
part of any restructuring program in the period up to 4 years after
the HTCC Completion Date subject to an aggregate limit in such
period of Euro 5,000,000 (or its equivalent);
21
(w) the disposal by Invitel
to the Borrower of one share in Memorex for the purposes of
facilitating the Memorex Shareholder Squeeze Out; and
(x) a disposal of assets for
cash where the net consideration receivable (when aggregated with
net consideration receivable for any other sale, lease, license,
transfer or other disposal not allowed under the preceding
paragraphs) does not exceed Euro 5,000,000 (or its equivalent) in
any financial year of the Borrower.
“ Permitted
Encumbrances ” means:
(a) any Encumbrance arising
hereunder or under any of the Transaction Security
Documents;
(b) any Encumbrance which the
Administrative Agent, acting on the instructions of the Majority
Lenders, has at any time in writing agreed shall be a Permitted
Encumbrance;
(c) any Encumbrance arising
in the ordinary course of business by operation of law;
(d) any Encumbrance arising
out of title retention provisions in any suppliers contract in the
ordinary course of trading;
(e) any Encumbrance given or
to be given pursuant to the requirement of any regulatory authority
in the ordinary course of its business;
(f) any Encumbrance arising
under Finance Leases to the extent amounts outstanding under such
Finance Leases fall under paragraph (k) of the definition of
Permitted Borrowings (provided that such Encumbrance shall only
cover assets which are the subject of such Finance
Leases);
(g) any Encumbrance arising
under paragraph (e) of the definition of Permitted Intra-Group
Transactions;
(h) any Encumbrance over any
member of the Group’s bank accounts granted in favor of a
Lender and arising in the standard business terms of such bank or,
in the event that the Lenders are not willing to offer the relevant
member of the Group the banking services required on competitive
commercial terms, or at all, any Encumbrance over any member of the
Group’s bank accounts granted in favor of any bank or
financial institution from which the relevant member of the Group
obtains such services and arising in the standard business terms of
such bank or financial institution;
(i) any netting or set-off
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 but only so long as
such arrangement is not established with the primary purpose of
preferring any Lenders;
(j) any Encumbrance arising
under any of the Existing High Yield Offering Documents, the
Existing FRN Offering Documents and the Senior Security
Documents;
(k) any Encumbrance arising
by operation of law in respect of Taxes being contested in good
faith; and
22
(l) any Encumbrance created
by the Group not within paragraphs (a) to (k) above and
securing Indebtedness in aggregate not exceeding Euro 5,000,000 or
its equivalent at any time that has not been repaid and/or
discharged and where the assets the subject of such Encumbrance
have an aggregate book value not exceeding Euro 5,000,000 or
its equivalent.
“ Permitted
Financial Investments ” means on any date investments
in:
(a) euro or HUF denominated
securities which are freely negotiable and marketable:
(i) which are rated at least
AA by S&P or Aa2 by Moody’s; or
(ii) are issued by the
Republic of Hungary.
(b) certificates of deposits,
floating rate notes, acceptances issued in euro and HUF and euro
and HUF denominated deposit and current accounts of and time
deposits with banks which are HUF Lenders or banks which have a
credit rating from S&P or Moody’s as A or its equivalent
or better or euro denominated cash funds managed by any HUF Lender
or banks which have a credit rating from S&P or Moody’s
as A or its equivalent or better, with a maturity, in each case, of
not more than twelve months;
(c) euro and HUF denominated
commercial paper rated at least A1 by S&P or at least P1 by
Moody’s, with a maturity of not more than six months;
or
(d) securities which are Cash
Equivalent Investments.
“ Permitted FRN
Payments ” has the meaning given to it in the Senior
Credit Agreement.
“ Permitted
Guarantees ” means:
(a) any guarantees or
indemnities arising hereunder or under the Finance
Documents;
(b) any guarantees or
indemnities approved by the Administrative Agent (acting on the
instructions of the Majority Lenders);
(c) any guarantees or
indemnities included within Permitted Intra-Group
Transactions;
(d) any guarantees or
indemnities included within Permitted Borrowings;
(e) any guarantees or
indemnities given by a member of the Group (other than the
Borrower) in respect of any Permitted Borrowing of another member
of the Group (other than the Borrower) and/or by the Borrower in
respect of any Permitted Borrowing of a member of the
Group;
(f) any subordinated
guarantee included within the terms of the Existing High Yield
Offering Documents or the Existing FRN Offering Documents given by
any Obligor and any future guarantee granted in accordance with the
Existing High Yield Offering Documents or the Existing FRN Offering
Documents to the extent allowed by this Credit Agreement and the
Intercreditor Deed in favor of the Existing High Yield Trustee or
the Existing FRN Trustee, in connection with the Existing High
Yield Offering Documents or the Existing FRN Offering Documents,
provided that such guarantees are at all times subordinated to the
Loans by and subject to the terms of the Intercreditor
Deed;
23
(g) any guarantees or
indemnities provided to banks providing loans to employees of any
member of the Group (other than the Parent) in respect of such
loans provided that the aggregate of the maximum liability
thereunder (actual or contingent) together with the aggregate
outstanding amount of all loans referred to in paragraph (m)
of the definition of Permitted Investments does not exceed Euro
3,000,000;
(h) any indemnities provided
to the high yield underwriters of the Existing High Yield Notes,
the Existing FRN Bonds or the Bridge Borrower High Yield Notes
given by any Obligor under the purchase agreement entered into in
respect of the Existing High Yield Notes, the Existing FRN Bonds or
the Bridge Borrower High Yield Notes;
(i) a guarantee by an Obligor
of obligations of a member of the Group which is a non-Obligor
provided that the aggregate amount guaranteed does not exceed Euro
5,000,000 (or its equivalent) in aggregate for the Group at any
time;
(j) any guarantee made in
substitution for an extension of credit permitted under the
definition of “Permitted Loan” (other than loans within
the category set out in paragraph (f) of that definition) to
the extent that the issuer of the relevant guarantee would have
been entitled to make a loan in an equivalent amount under the
definition of “Permitted Loan” to the person whose
obligations are being guaranteed;
(k) any guarantee given in
respect of the netting or set-off arrangements permitted pursuant
to paragraph (i) of the definition of Permitted
Encumbrance;
(l) any guarantee granted to
the purchaser in connection with a Permitted Disposal, provided
that the aggregate amount of all such guarantees outstanding at any
time shall not exceed Euro 5,000,000 (or its equivalent);
or
(m) any guarantees or
indemnities of the Group not included in paragraphs (a) to
(h) (inclusive) above provided that the aggregate maximum
liability thereunder (actual or contingent) when aggregated with
Borrowed Money falling under paragraph (g) of the definition
of Permitted Borrowings does not exceed Euro 25,000,000 or its
equivalent.
“ Permitted HY
Payment ” has the meaning given to it in the Senior
Credit Agreement.
“ Permitted
Intra-Group Transactions ” means:
(a) loans or credit made by
(i) the Borrower to Invitel and Invitel Technocom including,
without limitation, the Existing High Yield Funding Loan and the
Existing FRN Funding Loans, in each case, constituting Subordinated
Shareholder Debt and, following the accession of Memorex and the
Turkish Subsidiary to this Credit Agreement, Memorex and the
Turkish Subsidiary including, without limitation, the Funding
Loans, in each case, constituting Subordinated Shareholder Debt (as
such term is defined in the Intercreditor Deed) (ii) any
member of the Group (other than the Borrower) to another member of
the Group (other than the Borrower or any Joint Ventures),
(iii) the Borrower to V-holding for no more than the amount
set out in the funds flow delivered pursuant to the Funds Flow
Statement provided that such loan is Subordinated Shareholder Debt
and subject to the terms of a pledge of receivables and
(iv) V-holding to CableNet Rt. for no more than HUF320,000,000
provided that such loan is used to pay outstanding invoices owed by
CableNet Rt. to V-holding;
24
(b) any transaction approved
as a Permitted Intra-Group Transaction by the Administrative Agent
(acting on the instructions of the Majority Lenders);
(c) the payment or
declaration of any dividend, return on capital, repayment of
capital contributions or other distributions by any of its
Subsidiaries to the Borrower;
(d) any payments or transfers
of assets (including any value added Tax thereon, if applicable)
from any member of the Group to another member of the Group
provided that where the Subsidiary making such payment or transfer
is a Subsidiary the shares in which are subject to a share pledge,
the Subsidiary to which such payment or transfer is made is also a
Subsidiary the shares in which are subject to a share
pledge;
(e) any rights of set off or
loans arising by virtue of the Group being provided with any bona
fide cash management and/or netting arrangements for the
Group;
(f) any payments made by a
member of the Group to the Parent permitted pursuant to
paragraph (d), (f), (h) or (i) to (k) of
“Permitted Payments”;
(g) any transaction required
to implement any of the steps set out in the Steps Paper (provided
that any express conditions or restrictions in relation to such
transaction set out in this Credit Agreement are complied with);
and
(h) any payments of any
guarantee fees from any Subsidiary to the Borrower required to
ensure that the Borrower qualifies as an “entrepreneur”
for the purpose of VAT treatment in the Netherlands.
“ Permitted
Investments ” means:
(a) any transaction included
within Permitted Disposals;
(b) any transaction included
within Permitted Intra-Group Transactions;
(c) any transaction included
within Permitted Financial Investments;
(d) any investments approved
by the Administrative Agent (acting on the instructions of the
Majority Lenders);
(e) an acquisition by a
member of the Group of an asset sold, leased, transferred or
otherwise disposed of by another member of the Group in
circumstances constituting a Permitted Disposal;
(f) the acquisition by the
Borrower and Invitel of shares in Memorex for the purposes of
affecting the Memorex Shareholder Squeeze Out;
(g) an acquisition of
securities which are Cash Equivalent Investments;
(h) the acquisition by a
member of the Group of the minority interest held in any person in
which it holds the majority interest;
25
(i) the acquisition of the
issued share capital of a limited liability company (including by
way of formation) which has not traded prior to the date of its
acquisition;
(j) any other
investment/acquisition (including, but not limited to, the
acquisition of a mobile license) provided that:
(i) the consideration (in
cash or otherwise) together with Indebtedness assumed and Ongoing
Funding Costs of all such acquisitions does not exceed
Euro 10,000,000 (in aggregate) during the period commencing on
the date hereof and ending on 30 June 2011 but excluding from
such limit the impact of the acquisition of 100 percent of the
shares in Euroweb Hungary Zrt. and 99.9564 percent of Euroweb
Romania; and
(ii) such person or asset
acquired can be used or (as the case may be) engages in, or is
being acquired for the purpose of engaging in, the Telecoms
Business; and
(k) (A) in the case of
an acquisition of the entire ownership interest in a person, such
person becomes an Additional Guarantor as soon as reasonably
practicable following the making of such acquisition (and, in any
event, no later than the earlier of (i) the date falling 30
days after the making of the acquisition and (ii) the date
when any security or guarantee is given by or in relation to the
acquired person in relation to, the Existing FRN Bonds or the
Existing High Yield Notes in accordance with the terms and
conditions set out in Section 10.5) or (B) in the case of
the acquisition of any other ownership interest in any person, such
share capital is charged, pledged or deposited (as the case may be)
to the Security Agent pursuant to a share pledge and such person
provides such documents and evidence as the Administrative Agent
may reasonably require that such share pledge constitutes valid and
legally binding obligations enforceable in accordance with its
terms or (C) in the case of the acquisition of an asset, such
asset becomes the subject of a floating charge under a Transaction
Security Document;
(l) any creation of an IPO
Subsidiary provided that such IPO Subsidiary simultaneously
therewith becomes an Additional Guarantor pursuant to the
provisions of Section 10.5;
(m) any transaction required
to implement any of the steps set out in the Steps Paper (provided
that any express conditions or restrictions in relation to such
transaction set out in this Credit Agreement are complied with);
and
(n) any loans from any member
of the Group (other than the Parent) to employees of any member of
the Group (other than the Parent) provided that the aggregate
amount outstanding under such loans together with (i) the
aggregate maximum liability (actual or contingent) under all
guarantees and indemnities referred to in paragraph (g) of the
definition of Permitted Guarantees and (ii) the aggregate
amount outstanding under loans referred to in paragraph (i) of
the definition of Permitted Loans does not exceed Euro
3,000,000.
“ Permitted
Loans ” means:
(a) any 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 and any
advance payment made in relation to capital expenditure in the
ordinary course of business;
26
(b) to the extent permitted
by the Intercreditor Deed, any loan made for the purposes of
enabling any Obligor to meet its payment obligations under the
Finance Documents, any Existing Transaction Debt (if payment of
such Existing Transaction Debt is permitted by the Intercreditor
Deed), any Transaction Debt (if payment of such Transaction Debt is
permitted by the Intercreditor Deed), to make a Permitted Payment
or to facilitate compliance with applicable law;
(c) any loan made by an
Obligor to a member of the Group which is not an Obligor so long as
the aggregate amount of the Indebtedness under any such loans does
not exceed Euro 5,000,000 (or its equivalent) at any
time;
(d) deferred consideration on
Permitted Disposals up to 25 percent of the sale considerations
provided that the aggregate amount outstanding at any time does not
exceed Euro 3,000,000 (or its equivalent);
(e) loans referred to in the
Steps Paper or the Structure Memorandum;
(f) a credit balance on an
account of a member of the Group with a bank or financial
institution;
(g) loans or extensions of
credit to the extent the amount thereof would be permitted under
the definition of Permitted Guarantee (other than guarantees within
the category set out in paragraph (j) of that definition) if
such loans or extensions of credit were made by third parties under
the guarantee of an Obligor;
(h) loans which constitute
Permitted Borrowings (except under paragraph (d) of that
definition); and
(i) any loan (other than a
loan made by a member of the Group to another member of the Group)
so long as the aggregate amount of the Indebtedness under any such
loans does not exceed Euro 3,000,000 (or its equivalent) at any
time.
“ Permitted
Payments ” means any payments or transfers of assets
(including any value added tax thereon, if applicable):
(a) [ reserved
];
(b) [ reserved
];
(c) consisting of a one off
cash payment that satisfies in full the Group’s obligations
to the Original Shareholder under the VTI Vendor Note provided no
Default has occurred and is continuing or would result from the
making of any payment under this paragraph (c);
(d) to the Parent in respect
of costs and expenses incurred in good faith on bona fide,
arm’s length terms in the ordinary course of business by the
Parent in acting as Holding Company of the Group provided that
(i) such costs and expenses do not exceed Euro 150,000 (or its
equivalent) in aggregate in any financial year and (ii) no
Default has occurred and is continuing or would result from the
making of any payment under this paragraph (d);
(e) any payment to HTCC to
fund payments by HTCC to the holders of preference shares in HTCC
up to an aggregate amount of US$105,000 in any financial year of
the Group;
27
(f) to the Parent, HTCC or
any intermediate Holding Company in respect of operating expenses
of the Obligors up to the aggregate amount of Euro 7,000,000 in any
financial year of the Group incurred in good faith by the Parent,
HTCC or any intermediate Holding Company, in each case, on bona
fide arm’s length commercial terms on behalf of the
Group;
(g) to HTTC in respect of
management fees of up to the aggregate amount of Euro 1,000,000 in
any financial year from (and including) 2007, provided that no
Default has occurred and is continuing or would result from the
making of any payment under this paragraph (g);
(h) of amounts to any direct
or indirect Holding Companies of the Obligors to fund any payment
by the Holding Companies of the payments referred to at paragraphs
(f) and (g) above;
(i) consisting of a loan to
the Parent, HTCC or any intermediate Holding Company to enable the
Parent, HTCC or any intermediate Holding Company to make any of the
payments referred to in (d), (e), (f) and
(h) above;
(j) payments to TDC or an
advisor to TDC for advice or services actually provided to the
Group on bona fide arms’ length commercial terms up to an
aggregate amount of Euro 2,000,000, provided that no Event of
Default is continuing or would arise as a direct result of such
payment; and
(k) a payment to fund the
purchase of any of the management equity (together with the
purchase or repayment of any related loans) and/or to make other
compensation payments to departing management up to an aggregate
amount of Euro 5,000,000, provided that no Event of Default is
continuing or would arise as a result of such payment.
“ PIK Notes
Refinancing ” means the repayment, prepayment or
refinancing of any or all of the Euro 125,000,000 aggregate
principal amount of Floating Rate Senior PIK Notes due 2013
initially issued by Invitel Holdings N.V. and assumed by Holdco I
B.V.
“ Prepayment
Date ” has the meaning specified in
Section 2.8.
“ Primary
Offering ” means a further public offering of the
shares in HTCC.
“ Principal
Agreements ” means the documents and agreements
listed in Schedule 5 together with any agreements replacing any of
the same.
“ Purchaser Due
Diligence Reports ” means the Structure Memorandum,
the legal due diligence report in respect of Memorex and its
Subsidiaries prepared by White & Case LLP dated
December 13, 2007, the KPMG tax due diligence report in
respect of Memorex and its Subsidiaries dated December 19,
2007 and the KPMG financial due diligence report in respect of
Memorex and its Subsidiaries dated December 19,
2007.
“
Purchasers” has the meaning specified in
Section 7.3.
“ Quarter
Days ” means 31 March, 30 June,
30 September and 31 December in any year.
“ Quarterly
Management Accounts ” means the quarterly accounts
for each Quarterly Period of the HTCC Group to be delivered to the
Administrative Agent pursuant to Section 5.1.
28
“ Quarterly
Period ” means each period of approximately three
months commencing on the day after a Quarter Day and ending on the
next following Quarter Day.
“ Rate Fixing
Day ” means the second TARGET Day before the first
day of an Interest Period (or other relevant period by reference to
which interest or overdue amounts are calculated) for a Loan, or
such other day as the Administrative Agent determines is generally
treated as the rate fixing day in the relevant currency by market
practice in the relevant interbank market.
“ Reference
Banks ” means, in relation to EURIBOR and Mandatory
Costs, the principal office of BNP Paribas and Merrill Lynch
International Bank Limited, London Branch and any other bank or
financial institution appointed as such by the Administrative Agent
under this Credit Agreement.
“
Register ” has the meaning specified in Section
7.7.
“ Related
Documents ” means the Exchange Notes, the Exchange
Note Indenture, any Assignment and Acceptance, any Accession
Document, the Escrow Agreement, the Engagement Letter, the Fee
Letter, any Hedging Document, any Transaction Security Document,
the Intercreditor Deed, the Intercreditor Deed Supplemental Deed,
the Second Intercreditor Deed Supplemental Deed, any Utilization
Notice, and any other document or agreement designated as such by
the Administrative Agent, on the one hand, and the Borrower on the
other hand.
“ Relevant
Jurisdiction ” means each jurisdiction in which a
member of the Group is incorporated or formed or in which such
member of the Group has its principal place of business or owns any
material assets or in which any action contemplated by this Credit
Agreement takes place or is to take place.
“ Relevant
Substance ” means (i) any radioactive emissions,
(ii) any electrical or electromagnetic emissions and
(iii) any substance whatsoever (whether in a solid or liquid
form or in the form of a gas or vapor and whether alone or in
combination with any other substance) which is capable of causing
harm to man or any other material living organism supported by the
environment (both natural and built), or materially damaging the
environment (both natural and built) or public health or
welfare.
“ Repeating
Representations ” means each of the representations
set out in Section 3.2 to Section 3.15.
“ Reports
” means:
(a) the Vendor Due Diligence
Reports; and
(b) the Purchaser Due
Diligence Reports.
“ Request
” means a request for credit made by the Borrower through the
delivery of a Utilization Notice.
“ Requirement of
Law ” means as to any person, the certificate of
incorporation and by-laws or other organizational or governing
document of such person, and any law, treaty, rule, regulation or
determination of an arbitrator or a court of other Governmental
Entity in each case applicable to or binding upon such person or
any of its property or to which such person or any of its property
is subject.
29
“
Reservations ” means:
(a) the principle that
equitable remedies are remedies which may be granted or refused at
the discretion of the court, the principle of reasonableness and
fairness, the limitation of enforcement by laws relating to
bankruptcy, insolvency, liquidation, reorganization, court schemes,
moratoria, administration and other laws generally affecting the
rights of creditors;
(b) the time barring of
claims under applicable limitation laws (including the Limitation
Acts), the possibility that an undertaking to assume liability for
or to indemnify a person against non-payment of stamp duty may be
void, defences of set-off or counterclaim;
(c) limitations under
Hungarian law in relation to the following:
(i) the enforceability of the
right of the Security Agent to represent the Finance Parties in
front of Hungarian courts in relation to the Finance Documents or
the delegation of that right by the Finance Parties to the Security
Agent;
(ii) the enforceability of
any Security Interest held by the Security Agent on behalf of any
Bridge Finance Party which becomes a Party by novation;
(iii) the enforceability of
any “attorney in fact” provisions of any Finance
Document governed by Hungarian law, but only in respect of the
revocability of that authority and the Security Agent’s
ability to use its discretion in the exercise of that
authority;
(iv) the principle that
corporate benefit may limit the ability of a Guarantor to provide a
guarantee or security; and
(d) any other general
principles which are set out as qualifications or reservations as
to matters of law in the legal opinions delivered to the
Administrative Agent under this Credit Agreement.
“ Restricted
Payment ” means (a) any direct or indirect
distribution, dividend, loan or other payment (whether in cash,
property, securities or otherwise) by any member of the Group
(including, without limitation, any payment on account of the share
capital of the Parent and the Borrower or capital stock or other
securities of the Parent and the Borrower) or any interest thereon,
(b) any transfer of any assets by any member of the Group and
(c) any payment (whether in cash, property, securities or
otherwise) of principal of, or interest on, Indebtedness, in each
case to any Restricted Person.
“ Restricted
Person ” means the Parent or any of its Holding
Companies, Subsidiaries or Associated Companies (which are not
members of the Group), HTCC or any of its Affiliates (which are not
members of the Group) or the Original Shareholder.
“ Romanian
Guarantor ” means any Guarantor established under the
laws of Romania.
“ Screen
Rate ” means, for EURIBOR, the percentage rate per
annum determined by the Banking Federation of the European
Union for the relevant currency and Interest Period displayed on
the appropriate page of the Telerate screen selected by the
Administrative Agent. If the relevant page is replaced or the
service ceases to be available, the Administrative Agent (after
consultation with the Borrower and the Lenders) may specify another
page or service displaying the appropriate rate.
“ SEC
” means the U.S. Securities and Exchange
Commission.
30
“ Second HTCC
Opco Share Security Agreement ” means the second
ranking quota pledge over the business quota in the HTCC Operating
Company entered into or to be entered into by the Borrower and the
Security Agent in the agreed form.
“ Second
Intercreditor Deed Supplemental Deed ” means the
supplemental deed dated on or about the date of hereof amending and
restating the Intercreditor Deed (as amended and restated pursuant
to the Intercreditor Deed Supplemental Deed) between, inter alios,
the security trustee under the Senior Credit Agreement, the Parent,
the obligors under the Senior Credit Agreement, the Hedge
Counterparties (as such term is defined in the Intercreditor Deed),
the Existing High Yield Trustee, the FRN Bridge Trustee (as such
term is defined in the Intercreditor Deed Supplemental Deed), the
Existing FRN Note Trustee and the Security Agent.
“ Second Original
Obligor Share Securities Amendment Agreements
” has the meaning specified in the Senior Credit
Agreement.
“ Securities
Act ” means the U.S. Securities Act of 1933, as
amended.
“ Security
Agent ” means BNP Paribas Trust Corporation UK
Limited, acting as agent pursuant to the Transaction Security
Documents or any successor or replacement Security Agent, acting in
such capacity.
“ Security
Interest ” means any mortgage, pledge, lien, charge
(fixed or floating), assignment, hypothecation, set-off or trust
arrangement for the purpose of creating security, reservation of
title or security interest, or any other agreement or arrangement
having a substantially similar effect.
“ Security
Provider ” means any party other than a member of the
Group or a Bridge Finance Party which enters into a Transaction
Security Document.
“ Senior Credit
Agreement ” means the amended and restated facilities
agreement dated on or about the date hereof between Invitel as
borrower, the Borrower and certain of its Subsidiaries as
guarantors, BNP Paribas as co-ordinator and mandated lead arranger,
BNP Paribas and BNP Paribas, Hungary Branch as Agents, BNP Paribas
Trust Corporation UK Limited as security agent and the banks and
financial institutions from time to time party thereto, as may be
amended or restated.
“ Senior
Creditors ” has the meaning given to it in the Senior
Credit Agreement.
“ Senior
Debt ” means any Indebtedness outstanding under the
Senior Credit Agreement or Hedging Debt related thereto.
“ Senior Finance
Document ” has the meaning given to the term
“Finance Document” in the Senior Credit
Agreement.
“ Senior Finance
Parties ” has the meaning given to the term
“Finance Parties” in the Senior Credit
Agreement.
“ Senior Security
Document ” has the meaning given to the term
“Security Document” in the Senior Credit
Agreement.
“ Signing
Date ” means the date of this Credit
Agreement.
31
“ S&P
” means Standard & Poor’s Rating Services, a
division of The McGraw-Hill Companies, Inc. or any successor to its
rating business.
“ Steps
Paper ” means the Project Mercury Acquisition Step
Plan - Discussion Paper (Final Version) dated 8 December 2006
prepared by Ernst & Young.
“ Structure
Memorandum ” means the structure paper entitled
“Project Motherwell – Steps Memorandum” and dated
December 19, 2007 and prepared by White & Case LLP in
the agreed form and addressed to, and/or capable of being relied
upon by, the Arrangers and the other Finance Parties.
“
Subsidiary ” means in relation to any company
or corporation, a company or corporation:
(a) which is controlled,
directly or indirectly, by the first mentioned company or
corporation;
(b) more than half the issued
share capital of which is beneficially owned, directly or
indirectly by the first mentioned company or corporation;
or
(c) which is a Subsidiary of
another Subsidiary of the first mentioned company or
corporation,
and for this purpose, a
company or corporation shall be treated as being controlled by
another is that other company or corporation is able to direct its
affairs and/or to control the composition of its board of directors
or equivalent body.
“ Subordinated
Shareholder Creditor ” means a person defined therein
as such who has, at any relevant time, entered into the
Intercreditor Deed.
“ Subordinated
Shareholder Debt ” means, at any relevant time, all
Borrowed Money of any member of the Group owed to a Subordinated
Shareholder Creditor who is a member of the HTCC Group.
“ TARGET
Day ” means a day on which the Trans-European
Automated Real-time Gross Settlement Express Transfer payment
system is open for the settlement of payments in euro.
“ Tax
Credit ” has the meaning specified in
Section 2.10(g)(i).
“ Tax
Deduction ” means a deduction or withholding for or
on account of Tax from a payment under any Bridge Finance
Document.
“ Tax
Payment ” has the meaning specified in
Section 2.10(g).
“ Taxes
” has the meaning specified in
Section 2.10(a).
“ TDC
” means TDC A/S, registered number CVR 1477 39 08.
“ Telecoms
Business ” means the development, ownership or
operation of telecommunications systems in Hungary and in Romania
and/or provision of public telephone switching and data and
internet services in Hungary and connecting to other countries
and/or any business directly related thereto and reasonably
considered to be financially beneficial to such business and the
development, ownership or operation of wholesale data services in
Austria, Bulgaria, Czech Republic, Italy, Slovakia, Serbia,
Slovenia, Turkey and Ukraine.
32
“
Telecommunications Laws ” means all laws,
statutes, regulations and judgments relating to telecommunications
applicable to any member of the Group, and/or the business carried
on by, any member of the Group (for the avoidance of doubt, not
including laws, statutes, regulations or judgments relating solely
to consumer credit, data protection or intellectual
property).
“ Term
Loan ” means a loan made on the Conversion Date, if
any, by a Lender to the Borrower pursuant to Section 2.2 to
refinance a Bridge Loan.
“ Transaction
Debt ” means the Bridge Borrower High Yield Notes,
Exchange Notes and the Loans.
“ Transaction
Documents ” means the Finance Documents, the
Intergroup Loan Agreements and the Parent Loan
Agreements.
“ Transaction
Security ” means the Security Interests created or
expressed to be created in favor of the Security Agent pursuant to
the Transaction Security Documents.
“ Transaction
Security Documents ” means each of the documents
listed as being a Transaction Security Document in paragraph 4 of
Schedule 2 Part One together with any other document entered into
by any Obligor creating or expressed to create any Security
Interest over all or any part of its assets in respect of the
obligations of any of the Obligors under any of the Finance
Documents and (to the extent permitted by the Intercreditor Deed)
the Transaction Debt.
“
Transferee ” has the meaning specified in
Section 7.5.
“ Treasury
Transaction ” means any derivative transaction
entered into in connection with protection against or to benefit
from fluctuations in any rate, price, index or credit
rating.
“ Trust Indenture
Act ” means the U.S. Trust Indenture Act of
1939.
“ Turkish
Subsidiary ” means MTCTR Memorex
Telekomünikasyon Sanayi ve Ticaret Limited Şirketi, a
company incorporated under the laws of Turkey with registered
number of 622201 at the Istanbul Trade Registry.
“ Twelve Month
Consolidated EBITDA ” means the aggregate of the
Consolidated EBITDA in respect of the relevant Twelve Month Period
for the HTCC Group but, in respect of all Quarterly Periods and
Twelve Month Periods from the HTCC Completion Date and ending on or
before 31 December 2009 to the extent the same would otherwise
be deducted in calculating Consolidated EBITDA, adding back any
restructuring expenses attributable to the HTCC Acquisition and the
Acquisition up to a maximum aggregate amount of Euro
20,000,000.
“ Twelve Month
Period ” means each period of twelve months ending on
the last day of a calendar month.
“
Underwriters ” has the meaning specified in the
preamble to this Credit Agreement.
“ Universal
Service Agreements ” means the universal service
agreements listed in Schedule 5 together with any agreements
replacing any of the same.
“
Utilization ” means a utilization of the Bridge
Loans.
33
“ Utilization
Date ” means the date on which the Bridge Loans are
made.
“ Utilization
Notice ” means the written instructions from the
Borrower requesting the Bridge Loans in accordance with
Section 2.1(b)(i).
“
V-holding ” means V-holding Tamācsadó
Zrt., merged into Invitel effective January 1,
2008.
“ Vendor
” means Joki Holding AG.
“ Vendor Due
Diligence Reports ” means the legal due diligence
report dated July 21, 2006 and supplemented on
November 6, 2006 and prepared by Freshfields Bruckhaus
Deringer.
“ VTI Vendor
Note ” means the agreed form Euro 10,000,000 vendor
note dated May 13, 2003 issued by the Parent to the Original
Shareholder.
Section 1.2
Interpretation
(a) In this Credit Agreement,
the singular includes the plural and the plural includes the
singular; words implying any gender include the other genders;
references to any section, exhibit or schedule are to sections,
exhibits or schedules to this Credit Agreement unless otherwise
indicated; references to statutes are to be construed as including
all statutory provisions consolidating, amending or replacing the
statute referred to; references to “writing”, include
printing, typing, lithography and other means of reproducing words
in a visible form; “including” following a word or
phrase shall not be construed to limit the generality of such word
or phrase; and an accounting term not otherwise defined has the
meaning assigned to it in accordance with Accounting
Principles.
(b) In this Credit Agreement,
unless the contrary intention appears, a reference to:
(i) a document being in the
“ agreed form ” means that the document
is in a form previously agreed in writing by or on behalf of the
Borrower and the Administrative Agent or, if not previously agreed,
in a form as agreed between the Borrower and the relevant Bridge
Finance Parties, or if none of the Bridge Finance Parties are a
party to the agreement, as agreed between the Borrower and the
Administrative Agent;
(ii) in giving its “
agreement , approval ,
consent ” (or any similar phrase), in respect
of any action or request in connection with a Bridge Financing
Document, a Lender may by written notice to the Administrative
Agent divide its Commitments into separate amounts to reflect
participation or similar arrangements and may vote or refrain from
voting with respect to any such separate amount, or any matter
separately (and any determination of whether the Majority Lenders
have consented, instructed or taken any other action shall be
calculated accordingly);
(iii) an “
amendment ” includes an amendment, supplement,
novation, re-enactment, replacement, restatement or variation and
“ amend ” will be construed
accordingly;
(iv) “
assets ” includes businesses, undertakings,
securities, properties, revenues or rights of every description and
whether present or future, actual or contingent;
34
(v) an “
authorization ” includes an
authorization, consent, approval, resolution, permit, license,
exemption, filing, registration or notarization;
(vi) “
disposal ” means a sale, transfer, assignment,
grant, lease, license, declaration of trust or other disposal,
whether voluntary or involuntary and whether pursuant to a single
transaction or a series of transactions, and “
dispose ” will be construed
accordingly;
(vii) “
guarantee ” means any guarantee, bond, letter
of credit, indemnity or similar assurance against financial loss,
or any obligation, direct or indirect, actual or contingent, to
purchase or assume any indebtedness of any person or to make an
investment in or loan to any person or to purchase assets of any
person, where, in each case, that obligation is assumed in order to
maintain or assist the ability of that person to meet any of its
indebtedness;
(viii) the “
holder ” of any Promissory Note which is a loan
is the lender of that loan;
(ix) “
incorporation ” includes the formation or
establishment of a partnership or any other person and “
incorporate ” will be construed
accordingly;
(x) “
indebtedness ” includes any obligation (whether
incurred as principal or as surety and whether present or future,
actual or contingent) for the payment or repayment of
money;
(xi) “
jurisdiction of incorporation ” includes any
jurisdiction under the laws of which a person is
incorporated;
(xii) “ know your
customer requirements ” are the identification checks
that a Bridge Finance Party requests in order to meet its
obligations under any applicable law or regulation to identify a
person who is (or is to become) its customer;
(xiii) a “
person ” includes any individual, company,
corporation, unincorporated association or body (including a
partnership, trust, fund, joint venture or consortium), government,
stage, agency, organization or other entity whether or not having
separate legal personality;
(xiv) a “
regulation ” includes any regulation, rule,
order, official directive, request or guideline (in each case,
whether or not having the force of law but, if not having the force
of law, being of a type with which any person to which it applies
is accustomed to comply) of any governmental, inter-governmental or
supranational body, agency, department or regulatory,
self-regulatory or other authority or organization;
(xv) a “
currency ” is a reference to the lawful
currency for the time being of the relevant country;
(xvi) a Default being “
continuing ” means that it has not been
remedied or waived in accordance with Section 8.27;
(xvii) a provision of law is
a reference to that provision as extended, applied, amended or
re-enacted and includes any subordinate legislation;
35
(xviii) a Party or any other
person includes its successors in title, permitted assigns and
permitted transferees;
(xix) a Finance Document or
other document includes (without prejudice to any prohibition on
amendments) all amendments (however fundamental) to that Finance
Document or other document, including any amendment providing for
any increase in the amount of a facility or any additional
facility; and
(xx) a time of day is a
reference to London time.
(c) Unless the contrary
intention appears, a reference to a “ month
” or “ months ” is a reference to a
period starting on one day in a calendar month and ending on the
numerically corresponding day in the next calendar month or the
calendar month in which it is to end, except that:
(i) if the numerically
corresponding day is not a Business Day, the period will end on the
next Business Day in that month (if there is one) or the preceding
Business Day (if there is not);
(ii) if there is no
numerically corresponding day in that month, that period will end
on the last Business Day in that month; and
(iii) notwithstanding
subparagraph (c)(i) above, a period which commences on the last
Business Day of a month will end on the last Business Day in the
next month or the calendar month in which it is to end, as
appropriate.
(d) Unless the contrary
intention appears:
(i) a reference to a Party
will not include that party if it has ceased to be a party under
this Credit Agreement;
(ii) a word or expression
used in any other Bridge Finance Document or in any notice given in
connection with any Bridge Finance Document has the same meaning in
that Bridge Finance Document or notice as in this Credit
Agreement;
(iii) if there is an
inconsistency between this Credit Agreement and another Bridge
Finance Document, this Credit Agreement will prevail unless that
other Bridge Finance Document is the Intercreditor Deed, in which
case the Intercreditor Deed will prevail;
(iv) any obligation of an
Obligor under the Bridge Finance Documents which is not a payment
obligation remains in force for so long as any payment obligation
of an Obligor is or may be or is capable of becoming outstanding
under the Bridge Finance Documents; and
(v) any obligation of an
Obligor under the Bridge Finance Documents includes an obligation
on that Obligor not to contract or agree to do something or not to
do something which would breach that first obligation unless such
contract or agreement is conditional on the discharge of the Senior
Debt or on the approval of the Lenders or the Majority Lenders (as
required under this Credit Agreement).
36
(e) No part of this Credit
Agreement is intended to or shall create a registrable Security
Interest.
(f) The index to and headings
in this Credit Agreement do not affect its
interpretation.
Section 1.3
Intercreditor Deed
This Credit Agreement is
subject to the terms of the Intercreditor Deed.
ARTICLE II.
THE CREDIT
FACILITY
Section 2.1
Commitments to Make Bridge Loans; Tranching; Parties
(a) Initial
Commitment. In reliance upon the representations and warranties
of the Obligors set forth herein and subject to the terms and
conditions set forth herein (including, for the avoidance of doubt,
ARTICLE VI hereof), each of the Lenders severally agrees to make a
Bridge Loan to the Borrower on the Completion Date up to the amount
of such Lender’s Commitment as set out on Schedule 4. No
Lender is responsible for the obligations of any other Lender,
provided, however, that the failure of an Original Lender to
fulfill its obligations hereunder will relieve the other Original
Lender from its duties or obligations under this Section 2.1.
Each Bridge Loan will mature on the Initial Maturity
Date.
(b) Procedure for Borrowing;
Termination of Commitments.
(i) The Borrower shall give
the Administrative Agent irrevocable notice in the form attached as
Exhibit E and consistent with the Funds Flow Statement (a “
Utilization Notice ”), which notice must be
received by the Administrative Agent prior to 1:00 p.m., London
time, one Business Day prior to the anticipated Completion Date,
requesting that the Lenders make the Bridge Loans on the Completion
Date and specifying the amount to be borrowed. Upon receipt of such
Utilization Notice, the Administrative Agent shall promptly notify
each Lender thereof and the proceeds of each Bridge Loan shall be
disbursed by wire transfer on the Completion Date as provided in
the Utilization Notice.
(ii) The Commitments shall
automatically terminate after the making of any Bridge Loans on the
Completion Date. The Commitments shall also automatically terminate
at 5:00 p.m. London time, on March 31, 2008 (the “
Outside Date ”) if the Utilization Date has not
occurred on or before that date. Any amounts available but not
drawn under this Credit Agreement on the earlier of (A) the
Completion Date and (B) the Outside Date shall be
automatically cancelled.
(c) Purpose. The
Bridge Loans will only be used in or towards the payment of fees
and expenses under the Bridge Finance Documents, for general
working capital purposes and to partially finance the consideration
payable for the Acquisition through the making of the Funding Loan
as provided for in the Acquisition Documents and related
transaction costs, in each case in accordance with the Structure
Memorandum. No Bridge Finance Party is bound to monitor or verify
the utilization of the Bridge Loans and no Bridge Finance Party
will be responsible for, or for the consequences of, such
utilization.
37
Section 2.2
Conversion to Term Loans
If, on the Initial Maturity
Date no Conversion Default exists and is continuing and the
Administrative Agent receives an Officers’ Certificate from
the Borrower certifying to the foregoing and requesting a
conversion of the Bridge Loans to Term Loans, each of the Lenders
hereby commits that, on the Initial Maturity Date, such Lender will
convert its Bridge Loans to a Term Loan, maturing on the Extended
Maturity Date (and the Initial Maturity Date shall be deemed to
have been automatically extended to such date). Term Loans so
converted shall be governed by the terms of this Credit Agreement;
provided:
(a) ARTICLE IV of this Credit
Agreement (other than Sections 4.1, 4.2, 4.3, 4.5, 4.8, 4.12, 4.14,
4.34, 4.35, 4.36) and ARTICLE V of this Credit Agreement (other
than Sections 5.7 and 5.8) shall be replaced in full with ARTICLE
FOUR (other than subclause 4.07(c)(xii) and Section 4.23) and
FIVE of the Existing FRN Indenture (including the definitions
included in the Existing FRN Indenture (with the following
definitional replacements: “Issuer” to
“Borrower”; “Holder” to
“Lender”; “Trustee” to
“Administrative Agent”; “Indenture” to
“Credit Agreement”; and such other definitional changes
(and cross reference changes) consistent with the foregoing and
necessary to make the replacement provisions consistent with the
non-replaced provisions of this Credit Agreement)), subject to any
changes required to make such provisions conform with those
customary for term loan transactions, to be determined jointly by
the Borrower and the Mandated Lead Arrangers in good faith, and in
each case giving consideration to prevailing market conditions, but
in any event such provisions to be on no less favorable terms to
the Lenders than as currently set out in the Existing FRN
Indenture; and
(b) Section 8.02
thorough Section 8.21 of this Credit Agreement shall be
replaced in full with Sections 6.01(a)(i) through (xiii) of
the Existing FRN Indenture (including the definitions included in
the Existing FRN Indenture (with the following definitional
replacements: “Issuer” to “Borrower”;
“Holder” to “Lender”; “Trustee”
to “Administrative Agent”; “Indenture” to
“Credit Agreement”; and such other definitional changes
(and cross reference changes) consistent with the foregoing and
necessary to make the replacement provisions consistent with the
non-replaced provisions of this Credit Agreement)), subject to any
changes required to make such provisions conform with those
customary for term loan transactions, to be determined jointly by
the Borrower and the Mandated Lead Arrangers in good faith, and in
each case giving consideration to prevailing market conditions, but
in any event such provisions to be on no less favorable terms to
the Lenders than as currently set out in the Existing FRN
Indenture.
Section 2.3 Option to
Exchange Term Loans for Exchange Notes
(a) Subject to
Section 7.2, on any Business Day on or after the Conversion
Date (if any), any Lender may elect to exchange all or any portion
of its Term Loan for one or more Exchange Notes, by giving not less
than three Business Days’ prior irrevocable written notice of
such election in connection with a sale to a third party to the
Borrower, the Administrative Agent and the Exchange Note Trustee
specifying the principal amount of its Term Loan to be exchanged
(which shall be at least Euro 50,000 and integral multiples of Euro
1,000 in excess thereof) and subject to Section 7.2, the name
of the proposed registered holder and, subject to the terms of the
Exchange Note Indenture, the amount of each Exchange Note requested
(each such notice, an “ Exchange Notice
”); provided that the Borrower is not obligated to
issue any Exchange Notes until it has received notice for the
exchange of Term Loans in an aggregate amount of at least Euro
15,000,000. Any such exchanging Lender that has received a Bridge
Note shall deliver its Bridge Notes to the Administrative Agent
within three Business Days following delivery of an Exchange
Notice. Term Loans exchanged for Exchange Notes pursuant to this
Section 2.3 shall be deemed repaid and cancelled and the
Exchange Notes so issued shall be governed by and construed in
accordance with the provisions of the Exchange Note
Indenture.
38
(b) Not later than the fourth
Business Day after delivery of an Exchange Notice:
(i) the Administrative Agent
shall deliver to the Escrow Agent any original Bridge Notes
delivered to it by the exchanging Lender pursuant to
(a);
(ii) the Escrow Agent shall
cancel each Bridge Note so delivered to it and, if applicable, the
Borrower shall issue a replacement Bridge Note to such Lender in an
amount equal to the principal amount of such Lender’s Term
Loan that is not being exchanged, or the Escrow Agent shall make a
notation on the surrendered Bridge Note to the effect that a
portion of the Term Loan represented thereby has been repaid and
for Term Loans not represented by Bridge Notes, the Administrative
Agent shall make a proper notation in the Register maintained
pursuant to Section 7.7; and
(iii) the Escrow Agent shall
deliver the applicable Exchange Note(s) to the Exchange Note
Trustee for authentication and delivery to the holder or holders
thereof specified in the Exchange Notice.
(c) Each Exchange Note issued
will be governed by the Exchange Note Indenture which shall contain
covenants, events of default, repayment and other provisions based
on those in the Existing FRN Indenture (subject, in the case of
covenants and events of default, to customary exceptions and
thresholds to be agreed), with such changes as are determined
jointly by the Borrower and the Mandated Lead Arrangers in good
faith, and in each case giving consideration to prevailing market
conditions.
(d) Each Exchange Note issued
pursuant to the Exchange Note Indenture shall bear interest at a
rate equal to the Exchange Note Interest Rate. Accrued interest on
Term Loans so exchanged shall be cancelled and the Exchange Notes
received in such exchange shall bear interest from and including
the most recent date to which interest has been paid on the Term
Loans so exchanged.
Section 2.4 Interest;
Default Interest
(a) Interest Rate
Applicable to the Loans. Subject to Section 2.4(c) and
(d) below, the unpaid principal balance of the Loans shall
bear interest until paid at a rate per annum equal to the
sum of EURIBOR plus the Applicable Margin plus the
Mandatory Cost (if any), changing on the first day of each Interest
Period when and as EURIBOR and/or the Mandatory Cost changes and,
with respect to the Applicable Margin, on any day the Applicable
Margin changes as provided for in the definition
thereof.
(b) Basis of Computation
of Interest; Payment of Interest. All interest shall be
calculated for actual days elapsed on the basis of a 360-day year
and shall be payable in arrears not later than 12:00 noon (London
time) on each Interest Payment Date by wire transfer of immediately
available funds in accordance with Section 2.9.
(c) Minimum/Maximum
Interest Rate. Notwithstanding anything contained in
Section 2.4(a) and (b), but subject to Section 2.4(d), in
no event shall the interest rate on the Loans for any Interest
Period exceed the lesser of (i) 11.5 percent per annum and
(ii) the highest rate permitted under applicable law
(excluding default interest).
39
(d) Default Interest.
After the occurrence and during the continuance of an Event of
Default, interest will accrue on the Loans, to the extent permitted
by applicable law, at a rate per annum equal to 2.00 percent
in excess of the otherwise applicable interest rate on the Loans.
The Borrower shall pay such default interest and all interest
accruing on any overdue Obligation in cash on demand from time to
time.
(e) Notification of
Interest Rates. The Administrative Agent shall promptly notify
each relevant party of a determination of a rate of interest under
this Credit Agreement.
Section 2.5 Mandatory
Prepayment
(a) Illegality
(i) A Lender must promptly
notify the Borrower (with a copy to the Administrative Agent) if it
becomes aware that it is unlawful in any applicable jurisdiction
for that Lender to perform any of its obligations under a Bridge
Finance Document or to fund or maintain its share of any
Loan;
(ii) After notification under
paragraph (i) above:
(A) the Borrower must repay
or prepay the share of that Lender the Loan granted by it on the
date specified in paragraph (iii) below; and
(B) the Commitments of that
Lender will be immediately cancelled.
(iii) The date for repayment
or prepayment of a Lender’s Loan will be the:
(A) the last day of the
current Interest Period; or
(B) if earlier, the date
specified by the Lender in the notification under paragraph (a)(i)
above and which must not be earlier than the last day of any
applicable grace period allowed by law.
(b) Market
Transactions. The Borrower shall prepay the Loans ratably in
accordance with the aggregate outstanding principal balances
thereof, with the Net Proceeds received by any member of the Group
or any Holding Company of a member of the Group from:
(i) any direct or indirect
public offering or private placement of any debt or equity
securities of the Parent or any of its Subsidiaries or Holding
Companies (excluding any issuance of Capital Stock to officers and
employees under employee benefit or compensation plans);
(ii) the incurrence of any
borrowings from financial institutions by the Borrower or any
Guarantor or any member of the Group on or after the Completion
Date (other than Permitted Financial Indebtedness); and
(iii) any Asset Sale after
the date of this Credit Agreement (subject to the required
prepayment of amounts under the Senior Credit
Agreement);
40
each of the transactions in
the foregoing clauses (i), (ii) and (iii), a “
Market Transaction ”. The Borrower shall,
following any Market Transaction, apply such Net Proceeds to prepay
the Loans pursuant to this Section 2.5(b), without premium or
penalty, by paying to each Lender an amount equal to 100 percent of
such Lender’s pro rata share of the aggregate
principal amount of the Loans to be prepaid, plus accrued
and unpaid interest thereon to the Prepayment Date.
Section 2.6 Optional
Prepayment
The Borrower may, upon three
Business Days’ prior written notice to each of the
Lenders:
(a) prepay the Bridge Loans
at any time, in whole or in part, on a pro rata basis, by
paying to each applicable Lender an amount equal to 100 percent of
such Lender’s pro rata share of the aggregate
principal amount of Bridge Loans to be prepaid, plus accrued
and unpaid interest thereon to the Prepayment Date plus any
breakage costs due pursuant to Section 2.7;
(b) prepay Term Loans at any
time prior to or on the date falling four years after the Initial
Maturity Date, in whole or in part, on a pro rata basis, by
paying to each applicable Lender an amount equal to 100 percent of
such Lender’s pro rata share of the aggregate
principal amount of Term Loans to be prepaid, plus the
Applicable Redemption Premium, plus accrued and unpaid
interest thereon to the Prepayment Date plus any breakage
costs due pursuant to Section 2.7, where:
“ Applicable
Redemption Premium ” means, with respect to any Term
Loan on any redemption date, the greater of:
(i) 1.0 percent of the then
outstanding principal amount of the Term Loan; and
(ii) the excess
of:
(A) the present value at such
redemption date of (x) the redemption price of such Term Loan
at the date falling four years after the Initial Maturity Date
(such redemption price being set forth in Section 2.6(c)(i)),
plus (y) all required interest payments that would otherwise
be due to be paid on such Term Loan (assuming that the interest
rate per annum on the Term Loan applicable on the date on which the
notice of redemption was giving was in effect for the entire
period) during the period between the redemption date and the date
falling four years after the Initial Maturity Date (excluding
accrued but unpaid interest), computed using a discount rate
(discounted quarterly assuming a 360-day year consisting of twelve
30-day months) equal to the Bund Rate at such redemption date plus
50 basis points; over
(B) the then outstanding
principal amount of the Term Loan.
“ Bund
Rate ” means, with respect to any redemption date,
the rate per annum equal to the equivalent yield to maturity as of
such redemption date of the Comparable German Bund Issue, assuming
a price for the Comparable German Bund Issue (expressed as a
percentage of its principal amount) equal to the Comparable German
Bund Price for such redemption date, where:
(i) “ Comparable
German Bund Issue ” means the German
Bundesanleihe security selected by any Reference German Bund
Dealer as having a fixed maturity most
41
nearly equal to the period
from such redemption date to the date falling four years after the
Initial Maturity Date, and that would be utilized, at the time of
selection and in accordance with customary financial practice, in
pricing new issues of euro denominated corporate debt securities in
a principal amount approximately equal to the then outstanding
principal amount of the Term Loans and of a maturity most nearly
equal to the date falling four years after the Initial Maturity
Date; provided, however, that if the period from such redemption
date to the date falling four years after the Initial Maturity Date
is not equal to the fixed maturity of the German
Bundesanleihe security selected by such Reference German
Bund Dealer, the Bund Rate shall be determined by linear
interpolation (calculated to the nearest one twelfth of a year)
from the yields of German Bundesanleihe securities for which
such yields are given; except that if the period from such
redemption date to the date falling four years after the Initial
Maturity Date is less than one year, a fixed maturity of one year
shall be used;
(ii) “ Comparable
German Bund Price ” means, with respect to any
redemption date, the average of the Reference German Bund Dealer
Quotations for such redemption date which in any event must include
at least two such quotations, after excluding the highest and
lowest such Reference German Bund Dealer Quotations, or if the
Borrower obtains fewer than four such Reference German Bund Dealer
Quotations, the average of all such quotations;
(iii) “ Reference
German Bund Dealer ” means any dealer of German
Bundesanleihe securities appointed by the Borrower in
consultation with the Security Trustee; and
(iv) “ Reference
German Bund Dealer Quotations ” means, with respect
to each Reference German Bund Dealer and any redemption date, the
average as determined by the Borrower in good faith of the bid and
offered prices for the Comparable German Bund issue (expressed in
each case as a percentage of its principal amount) quoted in
writing to the Issuer by such Reference German Bund Dealer at 3:30
p.m. Frankfurt, Germany time on the third German business day
preceding such redemption date; and
(c) in respect of Term Loans
at any time after the date falling four years after the Initial
Maturity Date (A) other than Term Loans held by the Original
Lenders (unless such Original Lender acquired such Term Loan from a
third party) prepay the Term Loans by paying to each applicable
Lender an amount equal to such Lender’s pro rata share
of the aggregate principal amount of Term Loans to be prepaid at
the following redemption prices (i) from the date falling four
years after the Initial Maturity Date, par plus 50 percent of the
coupon, (ii) from the date falling five years after the
Initial Maturity Date, par plus 25 percent of the coupon, and
thereafter (iii) at par, plus (in all cases) any
accrued and unpaid interest thereon to the Prepayment Date and any
breakage costs due pursuant to Section 2.7 and (B) held
by the Original Lenders, prepay the Term Loans by paying to each
applicable Original Lender an amount equal to 100 percent of such
Original Lender’s pro rata share of the aggregate
principal amount of Term Loans to be prepaid , plus accrued
and unpaid interest thereon to the Prepayment Date plus any
breakage costs due pursuant to Section 2.7.
Section 2.7 Breakage
Costs; Indemnity
The Borrower and each
Guarantor agrees to indemnify and hold each Affected Party harmless
from and against any loss or expense which such Affected Party
sustains or incurs as a consequence, other than by reason of fraud
or willful misconduct by such Lender, of:
(a) default by the Borrower
or any Guarantor in payment when due of the principal amount of, or
interest on, any Loan;
42
(b) default by the Borrower
in making a borrowing of Loans after the Borrower has given a
notice requesting the same in accordance with the provisions of
this Credit Agreement;
(c) default by the Borrower
in making any prepayment of any Loan after the Borrower has given a
notice thereof in accordance with the provisions of this Credit
Agreement; or
(d) the making of a
prepayment of Loans on a day which is not the last day of an
Interest Period with respect thereto.
Such indemnification may
include an amount equal to the excess, if any, of (i) such
Affected Party’s actual loss and expenses incurred (excluding
lost profits) in connection with, or by reason of, any of the
foregoing events and (ii) the excess, if any of (A) the
amount of interest that would have accrued on the principal amount
of Bridge Loans not so made or the principal amount of Loans so
prepaid from the date of such proposed issuance or prepayment in
the case of a failure to make Bridge Loans, to the last day of the
Interest Period that would have commenced on the proposed date of
funding, or in the case of any such prepayment, to the last day of
the Interest Period in which such prepayment occurred, in each case
at the applicable rate of interest for such Loans provided for
herein (excluding, however, the Applicable Margin included therein,
if any) over (B) the amount of interest (as reasonably
determined by such Affected Party) which would have accrued to such
Affected Party on such amount by placing such amount on deposit for
a period comparable to such Interest Period with leading banks in
the interbank eurocurrency market. A certificate as to any amounts
payable pursuant to this Section 2.7 submitted to the Borrower
by any Affected Party shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this
Credit Agreement and the payment of the Obligations under the
Bridge Finance Documents.
Section 2.8 Effect of
Notice of Prepayment
The Borrower shall notify the
Lenders in writing at their addresses shown in the Register of any
date set for prepayment (each such day, a “ Prepayment
Date ”) of Loans. Once such notice is sent or mailed,
the Loans to be prepaid shall become due and payable on the
Prepayment Date set forth in such notice. Such notice may not be
conditional. No amount prepaid under this Credit Agreement may
subsequently be re-borrowed.
Section 2.9
Payments
(a) Wire Transfer .
The principal of, fees, premium, if any, interest and Mandatory
Cost and other amounts payable on each Loan and all other
Obligations arising under the Bridge Finance Documents shall be
payable by wire transfer in immediately available funds in euro to
the Administrative Agent for the respective accounts of the Lenders
as set forth in the Register from time to time at least three
Business Days prior to the due date therefor.
(b) Payments on Business
Days . If any payment to be made hereunder or under any Loan
shall be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day (and such extension of
time shall be included in computing interest in connection with
such payment); provided, however , that if such succeeding
Business Day falls in the next calendar month, such payment shall
be made on the next preceding Business Day.
43
(c) Partial Prepayments
and Redemptions . All partial prepayments and repayments of the
outstanding principal balance of the Loans shall be made ratably
among the applicable Lenders in accordance with their respective
shares of the aggregate outstanding principal balance of the Loans
eligible for prepayment or redemption.
(d) No Defense . To
the fullest extent permitted by law, the Borrower and each of the
Guarantors shall make all payments hereunder and under any Loan
regardless of any defense or counterclaim.
(e) Allocation . Any
money paid to, received by, or collected by the Administrative
Agent or any Lender pursuant to this Credit Agreement or any other
Bridge Finance Document, shall be applied to the extent not
otherwise provided for in the Intercreditor Deed in the following
order, at the date or dates fixed by the Administrative
Agent:
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First:
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to any
unpaid fees and reimbursement or unpaid expenses of the Arrangers,
the Administrative Agent and the Security Agent hereunder and under
the Fee Letter; |
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Second :
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to the
payment of all costs, expenses, other fees, commissions and taxes
owing to any Lender hereunder; |
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Third :
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to the
indefeasible payment of all accrued interest to the date of such
payment or collection; |
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Fourth:
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to the
indefeasible payment of the amounts then due and unpaid under this
Credit Agreement, the Bridge Notes or any other Bridge Finance
Document for principal, in respect of which or for the benefit of
which such money has been paid or collected, ratably, without
preference or priority of any kind, according to the amounts due
and payable on the Loans for principal; |
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Fifth :
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to the
indefeasible payment of any other amounts owing in respect of the
Obligations under the Bridge Finance Documents; and |
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Sixth :
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the balance,
if any, to the person lawfully entitled thereto. |
Section 2.10
Taxes
(a) Taxes . Any and
all payments by or on behalf of the Borrower and each Guarantor
hereunder or under the Bridge Notes, the Exchange Notes or any
other Bridge Finance Document shall be made, in accordance with
Section 2.9 or the other applicable provision of the
applicable Bridge Finance Document, free and clear of and without
deduction or withholding for or on account of any and all present
or future income, stamp or other taxes, levies, imports,
deductions, charges or withholdings additions to tax, interest,
penalties and all other liabilities with respect thereto, excluding
net income, franchise or similar taxes imposed or levied on the
Administrative Agent, the Security Agent or the Lenders as a result
of a present or former connection between the Administrative Agent,
the Security Agent or the Lenders and the jurisdiction of the
governmental authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Administrative Agent, the
Security Agent or such Lenders having executed, delivered or
performed its obligations or received a payment under, or enforced,
this Credit Agreement) (all such non-excluded taxes, levies,
imports, duty, deductions, charges, withholdings and
liabilities
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being hereinafter referred to
as “ Taxes ”). If the Borrower or any
Guarantor shall be required by law to deduct or withhold any Taxes
from, or in respect of, any sum payable hereunder or under the
Bridge Notes, the Exchange Notes or any other Bridge Finance
Document to the Administrative Agent, the Security Agent or the
Lenders or any of their respective Affiliates who may become a
Lender: (i) the sum payable thereunder shall be increased as
may be necessary so that after making all required deductions or
withholdings (including deductions or withholdings applicable to
additional sums payable under this Section 2.10) the
Administrative Agent, the Security Agent or the Lenders or any of
their respective Affiliates receives an amount equal to the sum it
would have received had no such deductions or withholdings been
made; (ii) the Borrower or such Guarantor, as the case may be,
shall make such deductions or withholdings; and (iii) the
Borrower or such Guarantor, as the case may be, shall pay the full
amount deducted to the relevant tax authority or other authority in
accordance with applicable laws.
(b) Other Taxes . In
addition, the Borrower and each of the Guarantors agree to pay any
present or future stamp, mortgage recording or documentary taxes or
any other excise or property taxes, charges or similar levies which
arise from any payment made hereunder or under a Bridge Note,
Exchange Note or other Bridge Finance Document or from the
execution, delivery or registration of, or otherwise with respect
to, this Credit Agreement or the other Bridge Finance Documents
(hereinafter referred to as “ Other Taxes
”) and hold the Administrative Agent, the Security Agent and
each Lender harmless from and against any and all liabilities with
respect to or resulting from any delay or omission (other than to
the extent attributable to such Lender) to pay such Other
Taxes.
(c) Austrian Stamp
Taxes. The parties agree that no original or certified copy of
this Credit Agreement or any Bridge Finance Document shall be
brought into the Republic of Austria. Furthermore, the parties
hereto agree that (i) no party shall print out any e-mail
communication which refers to any Bridge Finance Document in
Austria or (ii) send any e-mail communication carrying an
electronic or digital signature which refers to any Bridge Finance
Document to an Austrian addressee. Nothing in this paragraph
(c) shall, however, prevent a Bridge Finance Party from
bringing an original or a certified copy or any document
constituting substitute documentation ( Ersatzbeurkundung ,
rechtsbezeugende Beurkundung oder Bezugnahme auf eine
Schrift ) of this Credit Agreement or any Bridge Finance
Document into the Republic of Austria if this is in connection with
the enforcement of or the preservation of any rights, powers and
remedies under any Bridge Finance Document or any proceedings
instituted by or against a Bridge Finance Party in connection
therewith. In this respect each Party agrees not to contest the
validity of an uncertified copy of a Bridge Finance Document in any
proceedings relating to a dispute before any court, arbitral body
or governmental authority in the Republic of Austria (“
Proceedings ”) unless any such uncertified copy
actually introduced into evidence in any Proceeding does not
accurately reflect the content of such original.
(d) Indemnity . The
Borrower and the Guarantors will indemnify the Administrative
Agent, the Security Agent and any Lender for the full amount of
Taxes or Other Taxes arising in connection with payments made under
this Credit Agreement or any other Bridge Finance Document
(including, without limitation, any Taxes or Other Taxes imposed by
any jurisdiction on amounts payable under this Section 2.10)
paid by the Administrative Agent, the Security Agent or any Lender
or any of their respective Affiliates and any liability (including
penalties, additions to tax interest and expenses) arising
therefrom or with respect thereto. Payment under this
indemnification shall be made within fifteen days from the date the
Administrative Agent, the Security Agent or any Lender or any of
their respective Affiliates makes written demand therefore;
provided, however , that the Borrower and the Guarantors
shall not be obligated to make payment to the Lender, the Security
Agent or the Administrative Agent (as the case may be)
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pursuant to this
Section 2.10(d) in respect of penalties, interest and other
liabilities attributable to any Taxes or Other Taxes, if
(i) written demand therefore has not been made by such Lender,
the Security Agent or the Administrative Agent within 60 days from
the date on which such Lender, the Security Agent or the
Administrative Agent received written notice of the imposition of
Taxes or Other Taxes by the relevant taxing or governmental
authority, but only to the extent such penalties, interest and
other similar liabilities are attributable to such failure or delay
by the Administrative Agent, the Security Agent or the Lender in
making such written demand, (ii) such penalties, interest and
other liabilities have accrued after the Borrower had indemnified
or paid an additional amount due as of the date of such payment
pursuant to this Section 2.10(d) or (iii) such penalties,
interest and other liabilities are attributable to the gross
negligence or willful misconduct of the Lender, the Security Agent
or the Administrative Agent or such Affiliates. After the Lender,
the Security Agent or the Administrative Agent (as the case may be)
received written notice of the imposition of the Taxes or Other
Taxes which are subject to this Section 2.10(b), such Lender,
the Security Agent and Administrative Agent will act in good faith
to promptly notify the Borrower and the Guarantors of their
obligations hereunder; provided, however , that the failure
to so act shall not, standing alone, affect the rights of the
Administrative Agent, the Security Agent or the Lenders under this
Section 2.10(d).
(e) Furnish Evidence to
Lenders. The Borrower will make reasonable efforts to obtain
certified copies of tax receipts evidencing the payment of any
Taxes or Other Taxes deducted or withheld from each taxing
authority imposing such Taxes or Other Taxes, as the case may be.
The Borrower will furnish to the Lenders, within 60 days after the
date the payment of any Taxes so deducted or withheld is due
pursuant to applicable law, original or certified copies of tax
receipts evidencing such payment by the Borrower or, if such
receipts are not obtainable, other evidence of such payments by the
Borrower reasonably satisfactory to the Lenders. If the Borrower
fails to pay any Taxes or Other Taxes when due to the appropriate
taxing authority or fails to remit to the Lender required receipts
or other required documentary evidence, the Borrower shall
indemnify the Lenders for any incremental taxes, interest and
penalties that may become payable by the Lender as a result of any
such failure.
(f) Survival . Without
prejudice to the survival of any other agreement of the Borrower or
any Guarantor hereunder, the agreements and obligations of the
Borrower and the Guarantors contained in this Section 2.10
shall survive the payment in full of all amounts due hereunder and
under the Bridge Notes.
(g) Tax Credit. If the
Borrower or a Guarantor makes a payment of Taxes (hereinafter
referred to as a “ Tax Payment ”) and the
relevant Lender (in its absolute discretion) determines
that:
(i) a credit against any Tax
or any relief or remission for or rebate of Tax or its repayment
(hereinafter referred to as “ Tax Credit
”) is attributable to that Tax Payment; and
(ii) it has used and retained
that Tax Credit,
then such Lender must pay an
amount to the Borrower which that Lender determines (in its
absolute discretion) will, after such payment, leave it in the same
after-tax position as it would have been if the Tax Payment had not
been required to be made by the Borrower.
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Section 2.11 Right of
Set-Off, Sharing of Payments, Etc.
(a) Right of Set-Off .
In addition to any rights now or hereafter granted under applicable
law or otherwise, and not by way of limitation of any such rights,
upon the occurrence and during the continuance of any Event of
Default or if any Obligor becomes insolvent, however evidenced, the
Borrower authorizes each Lender at any time or from time to time,
without presentment, demand, protest or other notice of any kind to
the Borrower or to any other person, any such notice being hereby
expressly waived, to set off and to appropriate and apply any and
all deposits (general or special, time or demand, provisional or
final, whether or not collected or available) in any currency and
any other indebtedness at any time held or owing by such Lender or
any of its Affiliates (including, without limitation, by branches
and agencies of such Lender wherever located) to or for the credit
or the account of the Borrower against and on account of the
Obligations of the Borrower to such Lender under this Credit
Agreement or under any of the other Bridge Finance Documents,
including, without limitation, all interests in or participation in
the Obligations purchased by such Lender, and all other claims of
any nature or description arising out of or in connection with this
Credit Agreement or any other Bridge Finance Document, irrespective
of whether or not such Lender shall have made any demand hereunder
and although the Obligations, liabilities or claims, or any of
them, shall be contingent or unmatured. A Lender may exercise such
rights notwithstanding that the amounts concerned may be expressed
in different currencies and each Lender is authorized to effect any
necessary conversions at a market rate of exchange selected by it.
A Lender exercising its rights under this Section 2.11(a)
shall provide prompt notice to the Borrower following such
exercise.
(b) Sharing . If any
Lender shall obtain from the Borrower payment of any principal of
or interest on any Loan owing to it or payment of any other amount
under this Credit Agreement, a Bridge Finance Document or any
Bridge Note held by it through the exercise of any right of
set-off, banker’s lien or counterclaim or similar right or
otherwise (other than from the Administrative Agent as provided
herein) and, as a result of such payment, such Lender shall have
received a greater percentage of the principal of or interest on
the Loans or such other amounts then due to such Lender by the
Borrower than the percentage received by any other Lenders, it
shall promptly purchase from such other Lenders participation in
(or, if and to the extent specified by such Lender, direct
interests in) the Loans or such other amo
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