Dear Sirs Project Apollo – Share Purchase Agreement
EXECUTION VERSION
| From: | Cube Telecom Europe Bidco Limited 0 Xxxxxxxxxxx Xxxx Xxxxxx, XX0X 0XX Xxxxxx Xxxxxxx (the “Buyer”) | |||||||
| To: | GTT Communications Inc 0000 Xxxxxx Xxx Xxxxx Xxxxx 0000 XxXxxx, XX 00000 (the “Principal Seller”) | GTT Holdings Limited 000 Xxx Xxxxx Xxxxxx Xxxxxx, XX0X 0XX Xxxxxx Xxxxxxx (“GTT Holdings”) | ||||||
Global Telecom and Technology Holdings Ireland Limited The Exchange, George’s Dock I.F.S.C. Dublin, 1 X00 X0X0 (“GTT Holdings Ireland”) | Hibernia NGS Limited The Exchange, George’s Dock, IFSC Dublin 1 X00 X0X0 (“NGS Limited”) | |||||||
GTT Americas LLC 0000 Xxxxxx Xxx Xxxxx Xxxxx 0000 XxXxxx, XX 00000 ("GTT Americas") | ||||||||
10 June 2021
Dear Sirs
Project Apollo – Share Purchase Agreement
1. We refer to:
(a) the share purchase agreement entered into between the Principal Seller, GTT Holdings Ireland, GTT Holdings, NGS Limited and GTT Americas (together, the “Sellers”) and the Buyer dated 16 October 2020 and as amended on 22 October 2020 and on 31 December 2020 (the “SPA”), pursuant to which the Sellers agreed to sell to the Buyer, and the Buyer agreed to purchase from the Sellers, the Shares (as defined therein);
(b) a waiver letter entered into between the Principal Seller, GTT Holdings Ireland, GTT Holdings, NGS Limited and the Buyer dated 31 December 2020 pursuant to which the Buyer agreed to waive its termination right under the SPA solely in respect of an Insolvency Event arising as a result of the Litigation Matters (as defined therein) (the “Russian Litigation Waiver Letter”);
(c) an amendment letter entered into between the Sellers and the Buyer dated 31 December 2020 pursuant to which the parties agreed, among other things, certain amendments to the pre-Completion structure contemplated under the SPA (the “Reorganisation Amendment Letter”); and
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(d) an amendment letter entered into between the Sellers and the Buyer dated 15 February 2021 pursuant to which the parties agreed, among other things, to extend the KPMG VDD Reports Deadline (the “KPMG VDD Reports Extension Letter”).
2. Unless otherwise defined herein, the capitalised terms used in this letter shall have the same meaning given in the SPA.
3. It is noted that in connection with the Property Transfers being carried out as part of the Reorganisation:
(a) certain Group Companies may enter into an authorised guarantee agreement (or other equivalent arrangement pursuant to which a Group Company guarantees the performance of a RemainCo Company) in connection with the transfer of a Transferring RemainCo Business Property to a RemainCo Company (a “RemainCo AGA”); and
(b) certain RemainCo Companies may enter into an authorised guarantee agreement (or other equivalent arrangement pursuant to which a RemainCo Company guarantees the performance of a Group Company) in connection with the transfer of a Transferring InfraCo Business Property to a Group Company (an “InfraCo AGA”).
4. The parties have agreed that: (a) any and all Liabilities, Losses, costs, expenses or sums incurred by a Group Company as a result of, or in connection with, a RemainCo AGA shall constitute Transferring RemainCo Liabilities; and (b) any and all Liabilities, Losses, costs, expenses or sums incurred by a RemainCo Company as a result of, or in connection with, an InfraCo AGA shall constitute Transferring InfraCo Liabilities, in each case, for the purposes of schedule 12 to the SPA (and for the avoidance of doubt the Buyer shall not be entitled to make a claim under the Reorganisation Indemnity in respect of any such Transferring InfraCo Liabilities arising pursuant to an InfraCo AGA). For the avoidance of doubt, the entry into any RemainCo AGA or InfraCo AGA in connection with the Reorganisation shall not constitute a breach of the SPA.
5. Having regard to clause 22 of the SPA, the Buyer and the Sellers have agreed:
(a) a number of amendments to the SPA as shown in Schedule 1 to this letter (the “SPA Amendments”);
(b) that the conformed copy of the SPA which reflects the SPA Amendments, as attached in Schedule 2 to this letter, shall be the final agreement between the parties (subject to any variation which may subsequently be agreed between the parties in accordance with clause 22 of the SPA); and
(c) the SPA shall be interpreted in accordance with the conformed copy of the SPA and this letter and without prejudice to:
(i) paragraph 11 of the Russian Litigation Waiver Letter, as attached in Schedule 3 to this letter;
(ii) paragraphs 3(a) to 3(e) (inclusive) of the Reorganisation Amendment Letter, as attached in Schedule 4 to this letter; and
(iii) the KPMG VDD Reports Extension Letter, as attached in Schedule 5 to this letter,
such provisions remaining in full force and effect.
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6. This letter may be executed in any number of counterparts and execution by each of the parties of any one such counterpart will constitute execution of this letter.
7. The provisions of clauses 13 (Confidentiality), 19 (Assignment), 22 (Variations and Waivers), 23 (Severance), 24 (Remedies), 25 (Joint and Several Liability of Sellers), 26 (Entire Agreement), 28 (Third Party Rights), 29 (Notices), 32 (Counterparts), 33 (Governing Language) and 34 (Governing Law and Jurisdiction) of the SPA shall be incorporated into this letter as if set out in full in this letter.
8. This letter shall be governed by and construed in accordance with English law and subject to the exclusive jurisdiction of the courts of England.
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Schedule 2
Conformed copy of the SPA
| EXECUTION VERSION | ||
Dated [2020]
THE SELLERS and THE BUYER SALE AND PURCHASE AGREEMENT relating to The Target Companies and the InfraCo Business | ||
ACTIVE/110269197.7
TABLE OF CONTENTS
Page
i.
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Documents in the agreed form:
1. Announcement
2. Disclosure Letter
3. Completion Disclosure Letter
4. Data Room Documents index
5. InfraCo TSA
6. InfraCo MSA
7. GTT MSA
8. GTT TSA
9. Equity Commitment Letter
10. Material Reorganisation Documents
11. Licence Agreement
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THIS AGREEMENT is made on ________________ 2020
BETWEEN:
(1) GLOBAL TELECOM AND TECHNOLOGY HOLDINGS IRELAND LIMITED, a company incorporated in the Republic of Ireland with registered number 671202 and whose registered office is at The Exchange, George’s Dock I.F.S.C. Dublin 1 X00 X0X0 (“GTT Holdings Ireland”);
(2) HIBERNIA NGS LIMITED, a company incorporated in the Republic of Ireland with registered number 528814 and whose registered office is at The Exchange, George’s Dock, IFSC, Xxxxxx 0 (“NGS Limited”);
(3) GTT HOLDINGS LIMITED, a company incorporated in England and Wales with registered number 11273370 and whose registered office is at 000 Xxx Xxxxx Xxxxxx, Xxxxxx, Xxxxxx Xxxxxxx XX0X 0XX (“GTT Holdings”);
(4) GTT AMERICAS LLC, a company incorporated in Delaware, USA, with registered number 5921085 and whose registered office is at 0000 Xxxxxx Xxx Xxxxx Xxxxx 0000 XxXxxx, XX 00000 ("GTT Americas");
(5) GTT COMMUNICATIONS INC., a company incorporated in Delaware, USA, with registered number 3903078 and whose registered office is at 0000 Xxxxxx Xxx Xxxxx Xxxxx 0000 XxXxxx, XX 00000 (the “Principal Seller”);
(GTT Holdings Ireland, NGS Limited, GTT Holdings, GTT Americas and the Principal Seller each being a Seller and together the “Sellers”); and
(6) CUBE TELECOM EUROPE BIDCO LIMITED, a company incorporated in England and Wales with registered number 12936974 and whose registered office is at 0 Xxxxxxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxx, X0X 0XX (the “Buyer”).
RECITALS:
The Sellers have agreed to sell to the Buyer and the Buyer has agreed to purchase the Shares for the Consideration and otherwise in the manner and on and subject to the terms of this Agreement.
OPERATIVE PROVISIONS:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless the context requires otherwise, the capitalised terms set out below have the following meanings:
“Acceptable PSA” means a plan support agreement or RSA among certain members of the Sellers’ Group and some or all of the RSA Lender Parties (without a requirement for any specific percentage of holders) that supports approval of the sale of the Shares to the Buyer as contemplated in this Agreement and the related Transaction Documents through entry of an Acceptable Sale Order, and such Acceptable PSA shall (1) be on terms consistent with those terms set forth in the Sale Condition, and (2) provide for payment of the Buyer’s Restructuring Expenses and/or the Break-Up Fee in accordance with clause 4.25(b) of this Agreement, provided that no provision of a Acceptable PSA shall materially or adversely impact or impair the ability of the Sellers to consummate the Transaction, or otherwise materially or adversely impact or impair the legal, economic, or other rights of the Buyer or the Buyer’s Group set forth in this Agreement or any Transaction Documents;
“Acceptable RSA” has the meaning given to it in clause 4.4(h);
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“Acceptable Sale Motion” has the meaning given to it in clause 4.4(g)(ii)(A);
“Acceptable Sale Order” has the meaning given to it in clause 4.4(g)(ii)(C);
“Acceptance Criteria” means the acceptance criteria specified in the IT Separation Steps Plan;
“Acceptance Principle” means that the CMD Milestone or the Future System Milestone (as applicable) must: (a) be at least capable of providing equivalent functionality and performance as CMD provided in the twelve (12) calendar months immediately prior to the date of this Agreement, including speed, capacity, availability, code quality, security, incidents and events, defects, user access and other performance metrics; and (b) be capable of use by the Group to ensure compliance with legal and regulatory requirements that apply to the InfraCo Business in an equivalent manner and to the same extent as CMD was capable of ensuring compliance in the twelve (12) calendar months immediately prior to the date of this Agreement;
“Accounting Standards” means generally accepted accounting principles in the US;
“Accounts” means the carve-out balance sheet allocating each balance sheet line item therein to the InfraCo Business (referred to therein as “Apollo”) or the RemainCo Business (referred to therein as “RemainCo”) as at the Accounts Date and the carve-out profit and loss summary for the year ended on the Accounts Date, a copy of which is appended to the Disclosure Letter, provided that, for the purposes of Schedule 3 only, the “Accounts” shall mean the carve-out balance sheet allocating each balance sheet line item therein to the InfraCo Business (referred to therein as “Apollo”) or the RemainCo Business (referred to therein as “RemainCo”) as at the Accounts Date as set out on page 5 of the KPMG ‘Vendor Due Diligence Report, Volume 3 - carve out balance sheet, dated 24 February 2021’ and the carve-out profit and loss summary for the year ended on the Accounts Date set out on page 14 of the KPMG ‘Vendor due diligence report, Volume 1a - financial due diligence, dated 31 January 2021’ and described as “Summary P&L, FY19 Mgmnt”;
“Accounts Date” means 31 December 2019;
“Act” means the Companies Xxx 0000;
“Actual Tax Liability” means a liability to make a payment of, or in respect of or on account of, Tax whether or not such liability is a primary liability of a Group Company and whether or not the person so liable has or may have any right of indemnity or reimbursement against any other person;
“Additional Assets” means those assets which the Principal Seller and the Buyer agree shall be Additional Assets under the InfraCo MSA, at the date of this Agreement expected to comprise certain assets located in Australia, Brazil and Russia;
“Affiliate” means in relation to any person or body corporate, a person or body corporate that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person or body corporate but, in the case of the Buyer, shall exclude any portfolio companies of funds managed or advised by I Squared Capital Advisers (US) LLC or its successors (aside from, following Completion, each Group Company);
“Agreed Officer” means the employees, officers and/or directors of the Sellers’ Group agreed and identified between the parties in writing on or prior to the date of this Agreement;
“Aggregate Base Purchase Price” means the sum of the Base Purchase Prices for the Relevant Shares, equal to USD2,020,000,000;
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this “Agreement” means this sale and purchase agreement, including the introduction and the Schedules, as amended or restated from time to time;
“Allocation Notice” has the meaning given to it in clause 3.5(b);
“Xxxx Matter” means those arrangements referred to on pages 12, 35, 39, 110 and 111 of the Tax VDD Report (insofar as expressed to relate to “Project Xxxx”);
“Announcement” means the announcement in the agreed form relating to the Transaction;
“Auction NDA” any non-disclosure agreements entered into between any member of the Sellers’ Group and any third party potential purchaser of the InfraCo Business with whom the Sellers’ Group entered into an exclusivity arrangement;
“Bankruptcy Code” means title 11 of the United States Code, 11 U.S.C. §§ 101–1532 (as amended);
“Bankruptcy Court” means the United States Bankruptcy Court for the Southern District of New York, or any other court of competent jurisdiction where the Chapter 11 Cases are filed;
“Base Purchase Price” means the base purchase price for the Relevant Shares as set out in column 3 of Schedule 1;
“Basis of Presentation” means the basis of presentation as contained in the Information Memorandum in relation to the InfraCo Business prepared in connection with the Transaction;
“Billing Dependencies” means timely access to such systems and information of the Sellers’ Group or such data and information, in each case, as are necessary to enable the Buyer or the Group Companies to issue invoices and/or collect payment from the counterparty/ies to a Transferring RemainCo Contract or a Shared InfraCo Contract, in accordance with the billing cycle for that counterparty as specified in the relevant Customer Contract;
“Break-Up Fee” means an amount equal to three percent (3%) of the Aggregate Base Purchase Price;
“Business Day” means a day other than a Saturday, Sunday or public holiday in London, UK, Dublin, Ireland, Melbourne, Australia or State of Virginia, US;
“Business Warranties” means the statements set out in Part 2 and Part 3 of Schedule 5, and each a “Business Warranty”;
“Business Warranty Claim” means any claim made by or on behalf of the Buyer for a breach of a Business Warranty;
“Buyer Warranties” means the statements set out in Part 4 of Schedule 5;
“Buyer” has the meaning given to it in the Introduction;
“Buyer Financing Documents” means the irrevocable financing documents that may be entered into by the Buyer (or a member of the Buyer’s Group) and a third party lender, with the view to financing the relevant amounts payable under this Agreement;
“Buyer’s Advisors” means: (a) Xxxxxxxx & Xxxxx LLP; (b) Linklaters LLP; (c) Xxxxxx Xxxxxxx; (d) Xxxxxx & Xxxxxxx LLP; and (e) KPMG LLP;
“Buyer’s Group” means the Buyer and its Affiliates from time to time, including, after Completion, each Group Company, but shall exclude any portfolio companies of funds
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managed and/or advised by I Squared Capital Advisors (US) LLC or its successors (aside from, following Completion, each Group Company);
“Buyer’s Restructuring Expenses” means all reasonable and documented out-of-pocket restructuring-related fees, costs and expenses, including without limitation all out-of-pocket fees, costs and expenses arising from, related to, or in connection with advice and/or analysis in relation to the financial position of the Sellers’ Group and its potential restructuring and/or insolvency arrangements, the related amendment and restatement of this Agreement (and the negotiation of all related agreements), the Sellers’ and/or any member(s) of the Sellers’ Group’s in- or out-of-court restructuring efforts, formulation of and entry into an Acceptable RSA, an Acceptable PSA, participation in the Chapter 11 Cases, or any other motions, orders, exhibits, schedules, or other documents negotiated, filed, or approved by the Bankruptcy Court in connection with the Sellers’ and/or any member(s) of the Sellers’ Group’s prosecution of their Chapter 11 Cases, including without limitation a sale motion and an Acceptable Sale Order, in each case incurred by the Buyer, the Buyer’s Group and/or the Group Companies and their respective advisors (including any legal counsel, investment bankers, financial advisors, accountants, consultants and other advisors), and other professional fees, to the extent incurred on or after 1 October 2020, and for the avoidance of doubt (i) such Buyer’s Restructuring Expenses shall specifically include (without limitation) the out-of-pocket fees, costs and expenses of the Buyer’s Advisors to the extent related to the foreging and incurred on or after 1 October 2020 and (ii) the Buyer’s Restructuring Expenses shall in no event exceed and shall not be reimbursable hereunder in any amount in excess of $5,000,000;
“Buyer’s Solicitors” means Linklaters LLP of Xxx Xxxx Xxxxxx, Xxxxxx, X0XX 0XX;
“Buy-side Reports” means any due diligence report relating to the InfraCo Business prepared for the benefit of the Buyer or its Affiliates in connection with the Transaction;
“Capital Markets Debt” means (a) indebtedness for borrowed money, (b) notes, bonds, debentures and/or similar instruments and/or (c) Guarantees in respect of any of the foregoing, in each case, incurred after the date of this Agreement and however incurred, including, without limitation, through exchange transactions;
“Cash Amount” means the aggregate amount of all cash (by reference to nominal ledgers reconciled to bank statements) and cash equivalents (including all interest accrued thereon, cash in hand, cash in transit marketable securities, any Intra-Group Financing Receivables in the Group Companies but in each case excluding any cash held by or on behalf of any Group Companies in restricted accounts (including escrow accounts), calculated in accordance with the policies and procedures set out in Schedule 3 and comprising the line items identified in the column headed “Cash” in Part C of Part 2 of Schedule 3 (excluding any items included in the Debt Amount and the Working Capital);
“Cash Statement” means a statement of the Cash Amount of the Target Companies to be provided by the Buyer to the Sellers in accordance with Schedule 3;
“Chapter 11 Cases” means any reorganization case or collective group of cases filed by or against any of the Sellers and/or any member(s) of the Sellers’ Group or their Affiliates under chapter 11 of the Bankruptcy Code or that is filed under a different chapter of the Bankruptcy Code and subsequently converted to chapter 11 of the Bankruptcy Code;
“Chapter 11 Conditions” has the meaning given to it in clause 4.4(g);
“Claim” means any claim made by or on behalf of the Buyer for a breach of this Agreement, including but not limited to a Warranty Claim but excluding (i) Tax Covenant Claims, (ii) Reorganisation Indemnity Claims, (iii) Separation Claims and (iv) Restructuring Claims;
“CMA” means the UK Competition and Markets Authority;
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“CMD” means the Sellers’ Group’s order management application;
“CMD Milestone” means:
(a) a separate logical and/or physical instance (where applicable) of the: (i) CMD; and (ii) Oracle Financials (ERP); and (iii) any other IT System used by or on behalf of the InfraCo Business in the twelve (12) calendar months immediately prior to the date of this Agreement that is an InfraCo Asset; and
(b) any: (i) data (whether structured or unstructured) relating to the InfraCo Business immediately prior to the date of the Agreement; and (ii) data residing on any system identified in (a);
“CMD Milestone Completion” means the point at which the CMD Milestone materially meets the Acceptance Principle;
“Collateralised Cash” means the sum as at the Completion Date of any cash amounts that have been paid to the third party providers of finance or drawn down pursuant to an existing letter of credit identified in Schedule 25 in order to cash collateralise the Letters of Credit issued by such banks;
“COR” means cost of revenue;
“Completion” means completion of the sale and purchase of the Shares in accordance with the terms of clause 7;
“Completion Conditions” means the German Tax Condition, the Competition Conditions, the Regulatory Conditions and the Financial Statements Condition;
“Completion Date” means the date of Completion;
“Completion Disclosure Letter” means the letter in the agreed form (other than the items to be included in the table at part B headed “Specific Disclosures”) to be executed on the Completion Date including any documents annexed thereto from the Principal Seller to the Buyer in respect of certain facts, matters or circumstances occurring between the date of this Agreement and Completion relating to the Business Warranties (as warranted immediately before the Completion);
“Completion Estimates Statement” has the meaning given to it in clause 3.8;
“Completion Statements” means the Cash Statement, the Debt Statement, the Working Capital Statement and the EBITDA Statement;
“Completion Working Capital” means the Working Capital as at immediately prior to Completion, calculated in accordance with the policies and procedures set out in Schedule 3 and comprising each of the line items identified in the net column headed “Working Capital” in Part C of Part 2 of Schedule 3;
“Completion Time” has the meaning given to it in paragraph 1.5, Part B, Schedule 3;
“Conditions” has the meaning given to it in clause 4.5;
“Confidential Information” has the meaning given to it in clause 13.1;
“Confidentiality Agreement” means the confidentiality agreement between the Principal Seller and I Squared Capital Advisors (UK) LLP dated 28 February 2020;
“Consideration” has the meaning given to it in clause 3.1;
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“Contract Authorisation” has the meaning given to it in paragraph 1.3 of Schedule 11 and shall be interpreted in accordance with paragraph 5 of Schedule 11 and, where applicable, it shall be construed as a reference to Express Contract Authorisation in accordance with paragraph 5.2 of Schedule 11;
“Contract” means any binding contract, agreement, instrument, lease, licence or commitment;
“Contract Long Stop Date” means the earlier of:
(a) in respect of any Shared InfraCo Contract, Transferring InfraCo Contract, Shared RemainCo Contract or Transferring RemainCo Contract:
(i) except in the case of a Customer Contract referred to in (ii) below, the date that is two (2) years after the Completion Date; or
(ii) in the case of a Customer Contract that is due to expire, terminate or which may be extended or renewed at a date that is more than two (2) years after the Completion Date, the date on which such Customer Contract is due to expire or terminate or the first date on which it may be extended (whichever is earlier);
(b) the expiration or termination of the relevant Shared InfraCo Contract, Transferring InfraCo Contract, Shared RemainCo Contract or Transferring RemainCo Contract (as applicable); and
(c) in respect of:
(i) any Shared InfraCo Contract or Transferring InfraCo Contract, the date that an arrangement is in place with the counterparty to that Shared InfraCo Contract in accordance with paragraph 3.1 of Schedule 11 or that Transferring InfraCo Contract is assigned or transferred to a Group Company in accordance with paragraph 2.1 of Schedule 11 (as applicable); or
(ii) any Shared RemainCo Contract or Transferring RemainCo Contract, the date that an arrangement is in place with the counterparty to that Shared RemainCo Contract in accordance with paragraph 1.1 of Schedule 11 or that Transferring RemainCo Contract is assigned or transferred to a member of the Sellers’ Group (other than a Group Company) in accordance with paragraph 4.1 of Schedule 11 (as applicable);
“Contract Separation Plan” has the meaning given to it in paragraph 6.1(a) of Schedule 11;
“Corporate Income Tax Assets” means any amount in respect of corporation Tax eligible for recovery from the relevant Taxation Authority, as determined under the Tax laws of the local jurisdiction, and not yet actually received by a Group Company as of the Completion Date, including, for the avoidance of doubt, any Tax Refunds whether such amounts shall be received as cash or set off or otherwise utilised against any Corporate Income Tax Liability, but excluding any deferred Tax assets;
“Corporate Income Tax Liability” means any amount in respect of corporation Tax due and payable to a Taxation Authority, as determined under the Tax laws of the relevant local jurisdiction, and not yet paid by a Group company as at the Completion Date, including, for the avoidance of doubt, any amounts in respect of Tax arising in connection with or as a result of the Reorganisation but excluding any deferred Tax liabilities;
“Credit Agreement”, means the agreement dated as of May 31, 2018, among the Principal Seller, GTT Communications B.V., the lending institutions named therein, KeyBank National
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Association, as L/C Issuer and as Administrative Agent, and the other financial institutions party thereto, as amended, amended and restated, supplemented, waived or otherwise modified from time to time and all guarantees, security documents and other documentation executed in connection therewith;
“Customer Contract” means:
(a) in respect of a Transferring InfraCo Contract or a Shared RemainCo Contract, a contract under which a member of the Sellers’ Group (other than a Group Company) contracts to provide goods and/or services to the relevant counterparty/ies; and
(b) in respect of a Transferring RemainCo Contract or a Shared InfraCo Contract, a contract under which a Group Company contracts to provide goods and/or services to the relevant counterparty/ies;
“Customer Contract Services” means, in respect of each End Customer (as defined in the GTT TSA), the provision of services in respect of Customer Contracts as described in paragraphs 3.2(c) and 4.3(b) of Schedule 11 of this Agreement;
“D&O Insurance” has the meaning given to it in clause 14.3;
“D&O Tail Policy” has the meaning given to it in clause 14.3;
“Data Protection Legislation” means the applicable data protection legislation and regulations, including the General Data Protection Regulation (Regulation (EU) 2016/679) and any national implementing legislation and regulations;
“Data Room” means the online data room for Project Apollo hosted by Xxxxxxx Corporation, access to which has been made available to the Buyer;
“Data Room Documents” means the documents made available to the Buyer and its advisers via the Data Room, an index of which in the agreed form is attached to the Disclosure Letter;
“Debt Amount” means the aggregate amount immediately prior to Completion of all debt (by reference to nominal ledgers reconciled to bank statements) and debt equivalents (including all interest accrued thereon), indebtedness in the nature of borrowing and any Intra-Group Financing Payables in the Group Companies, calculated in accordance with the policies and procedures set out in Schedule 3 comprising each of the line items identified in the net column headed “Net Debt” in Part C of Part 2 Schedule 3 (excluding any items included in the Cash Amount and the Working Capital and including, but not limited to, the liabilities and obligations of any Group Company (whether incurred solely or jointly) under or in relation to any Financial Indebtedness ((including in relation to (a) any Existing Financial Indebtedness; and (b) any additional Financial Indebtedness incurred by any Group Company after the date of this Agreement (to the extent permitted by the terms of this Agreement and including any Capital Markets Debt)), and including any related Financing Costs);
“Debt Statement” means a statement of the Debt Amount of the Target Companies to be provided by the Buyer to the Sellers in accordance with Schedule 3;
“Defaulting Party” has the meaning given to it in clause 7.4;
“Delayed Pre-Completion Tax Document” has the meaning given to it in clause 16.2;
“Delayed Pre-Completion Tax Return” has the meaning given to it in clause 16.2;
“DIP Condition” has the meaning given to it in clause 4.4(g);
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“DIP Financing” has the meaning given to it in clause 4.4(g)(i);
“Discharged” means:
(a) with respect to any Financial Indebtedness or Guarantee of a person, that such person has been concurrently, irrevocably and unconditionally released (to the extent it is possible for such release to be irrevocable and unconditional under applicable law) from all present and future liabilities and obligations at any time due, owing or incurred by, or in respect of, such Financial Indebtedness or Guarantee, both actual and contingent and whether incurred solely or jointly and as principal or surety or in any other capacity; and
(b) with respect to any Encumbrance over any assets or property of a person or over the shares in or any receivable owed by or claim against a person, such Encumbrance shall have been irrevocably and unconditionally discharged and released in full;
“Disclosed” means fairly disclosed with sufficient detail to allow a reasonable buyer to make a reasonably informed assessment of the nature and scope of the matter concerned;
“Disclosure Documents” means:
(a) the Transaction Documents;
(b) the Data Room Documents;
(c) the Information Memorandum;
(d) the Buy-side Reports; and
(e) the Sell-side Reports;
“Disclosure Letter” means the letter in the agreed form executed on or about the same date as this Agreement including any documents annexed thereto from the Principal Seller to the Buyer relating to the Business Warranties;
“Dollar Proceeds” means an amount equal to the Initial Purchase Price less the Euro Proceeds;
“Due Diligence Investigation” has the meaning given to it in clause 9.3(a);
“EA02” means the UK Enterprise Xxx 0000;
“EBITDA Adjustment” has the meaning given to it in clause 3.6;
“EBITDA Statement” means a statement of the EBITDA Amount of the Target Companies to be provided by the Buyer to the Sellers in accordance with Schedule 3;
“EC” means the European Commission;
“Earn-Out Payment” has the meaning given to it in Schedule 24;
“Easynet Claim” means the claim originally filed and served on 23 December 2016, by Easygroup Limited (as claimant), with amended particulars of claim filed and served on 12 April 2019, against Interoute Communications Limited, EGHL (UK) Limited and Easynet Global Services Limited (as defendants) in the Business and Property Courts of England and Wales, Intellectual Property List (High Court of Justice, Chancery Division) with claim number HP2016- 000071, regarding use of “EASYNET” trade marks and domain names by certain Group Companies;
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“Encumbrance” means a mortgage, charge, pledge, lien, option, restriction, right of first refusal, right of pre-emption, third-party right or interest, or other encumbrance or security interest having similar effect;
“Equity Commitment Letter” means the equity commitment letter in the agreed form;
“Escrow Amount” means $75,000,000 or such other lower amount following any adjustments made in accordance with this Agreement;
“Estimated Cash Amount” means the Sellers’ good faith estimate of the Cash Amount as at the relevant time (as set out in this Agreement);
“Estimated Debt Amount” means the Sellers’ good faith estimate of the Debt Amount as at the relevant time (as set out in this Agreement);
“Estimated EBITDA Adjustment” means the Sellers’ good faith estimate of the EBITDA Adjustment as at the relevant time (as set out in this Agreement);
“Estimated Intra-Group Financing Payables” means the Sellers’ good faith estimate of the Intra-Group Financing Payables as at the relevant time (as set out in this Agreement) (as derived from the Estimated Debt Amount);
“Estimated Intra-Group Financing Receivables” means the Sellers’ good faith estimate of the Intra-Group Financing Receivables as at the relevant time (as set out in this Agreement) (as derived from the Estimated Cash Amount);
“Estimated Working Capital Adjustment” means the Sellers’ good faith estimate of the amount of the Working Capital Adjustment as at the relevant time (as set out in this Agreement);
“EU Withdrawal Agreement” means the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community agreed at the European Council on 17 October 2019;
“Euro Proceeds” means an amount equal to EUR 545,625,000;
“Exchange Rate” means in relation to any currency to be converted into or from pounds sterling (£), U.S. Dollars ($) or euro (€) for the purposes of this Agreement, the spot rate of exchange (closing mid-point) for that currency into or, as the case may be, from pounds sterling (£), U.S. Dollars ($) or euro (€) (as applicable), as published in the London edition of The Financial Times first published after the relevant date or, where any such conversion is required pursuant to this Agreement for the purposes of calculating or making any payment of any Consideration under this Agreement, on the date that is fifteen (15) Business Days prior to the relevant payment date;
“Existing D&O Insurance” has the meaning given to it in clause 14.3;
“Existing Debt Facilities” means the Credit Agreement, the High Yield Indenture and the IBM Loans;
“Existing Financial Indebtedness” means any Financial Indebtedness incurred by or related to any Group Company, including, but not limited to, liabilities under the Existing Debt Facilities but excluding any Intra-group Debt or any amounts owed under an Intercompany Loan Agreement;
“Existing Guarantee” means any Guarantee provided by any Group Company, including but not limited to any Guarantee relating to or provided in respect of the Existing Debt Facilities or any other Existing Financial Indebtedness;
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“Existing InfraCo Contracts” has the meaning given to it in Part 2 of Schedule 10;
“Existing Joint Venture Arrangements” means the following joint venture arrangements to which a Group Company is a party, as set out in the Data Room at folder 7.15:
(a) ownership interest in OpenHub Med S.c.a.r.l;
(b) participation in a joint venture with respect to Xxxxx X.x.x.x.x;
(c) participation in sea cable consortium offering connection between Europe and the United States (Tat-14);
(d) participation in sea cable consortium offering connection from Germany via the Middle East and India through South Korea (SEA-ME-WE-3);
(e) participation in sea cable consortium offering connection from Portugal and Spain via Western Africa to South Africa (SAT-3); and
(f) revenue share arrangement in relation to an indefensible right of use in two fibers connecting Seattle, Washington and California;
“Existing RemainCo Contracts” means the Contracts with a third party that relate exclusively to the RemainCo Business and to which the Sellers’ Group (other than the Group Companies) is a party, but excluding any Transaction Document;
“Existing Security” means any Encumbrance provided by or relating to any Group Company, including, but not limited to any Encumbrance relating to or provided in respect of the Existing Debt Facilities or any other Existing Financial Indebtedness;
“Express Contract Authorisation” shall have the meaning given to it in paragraph 5.2 of Schedule 11;
“Financial Indebtedness” means any present or future indebtedness or liability for or in respect of: (a) moneys borrowed and indebtedness in the nature of borrowing; (b) derivative transactions; (c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes or loan stock; (d) the amount of any liability in respect of any lease or hire purchase contract which would, meet the definition of a finance or capital lease; and (e) any guarantee or any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other similar liability;
“Financial Statements Condition” has the meaning given in clause 4.4(e);
“Financing Costs” means any related fees, expenses, charges, costs (including hedging termination payments or costs) and interests, premiums and/or penalties that are payable by any Group Company or for which any Group Company is or shall be liable pursuant to any Financial Indebtedness, Guarantees or Encumbrances;
“Future IT Environment” means the IT architecture comprising hardware and software supporting the InfraCo Business defined in the IT Separation Steps Plan;
“Future System Milestone” means:
(a) the Future IT Environment; and
(b) data residing on the Future IT Environment;
“Future System Milestone Completion” means the point at which the Future System Milestone materially meets the (i) Acceptance Criteria and (ii) Acceptance Principle;
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“German Tax Cash Collateralisation” has the meaning given to it in clause 4.19;
“German Tax Cash Collateralisation Amount” has the meaning given to it in clause 4.19;
“German Tax Insurance Policies” means the Project Phoenix insurance policies set out in folder 16.2.1.9.2 in the Data Room;
“German Tax Replacement Insurance Policy” has the meaning given to it in clause 4.19;
“Governmental Authorities” has the meaning given to it in clause 4.2;
“Group” means all of the Group Companies taken as a whole;
“Group Companies” means the Target Companies and their Subsidiaries, and each a “Group Company”;
“Group Company Cross-Perimeter Loans” means any agreement evidencing any intercompany loan or other financial arrangement having similar effect entered into between any Group Company as lender and any RemainCo Company as borrower;
“GTT Cross-Perimeter Loan” means any agreement evidencing any intercompany loan or other financial arrangement having similar effect entered into between any RemainCo Company as lender and any Group Company as borrower;
“GTT D&O Insurance” has the meaning given to it in clause 14.5;
“GTT Holdings” has the meaning given to it in the Introduction;
“GTT Holdings Ireland” has the meaning given to it in the Introduction;
“GTT Ireland” means Hibernia Express (Ireland) Limited;
“GTT Ireland Shares 1” means 75 ordinary shares of EUR 1 each in GTT Ireland, being 75% of the entire issued share capital of GTT Ireland;
“GTT Ireland Shares 2” means 25 ordinary shares of EUR 1 each in GTT Ireland, being 25% of the entire issued share capital of GTT Ireland;
“GTT MSA” means the master services agreement between a Group Company, as service recipient, and a member of the Sellers’ Group, as the service provider, in the agreed form, to be entered into on or before the Completion Date;
“GTT NGS” means together Hibernia Atlantic Communications (Canada) Company, GTT Ireland, Hibernia Atlantic Cable System Limited, Hibernia Atlantic (Singapore) Private Limited, Hibernia Atlantic (UK) Limited, Hibernia Media (UK) Limited and Hoffnungsvoll Communication Private Limited;
“GTT NGS Shares” means together GTT Ireland Shares 1, Hibernia Atlantic Communications (Canada) Company Shares, Hibernia Atlantic Cable System Limited Shares, Hibernia Atlantic (Singapore) Private Limited Share, Hibernia Atlantic (UK) Limited Shares, Hibernia Media (UK) Limited Shares and Hoffnungsvoll Communication Private Limited Shares;
“GTT Third Party Debt Arrangements” means the Credit Agreement and the High Yield Indenture;
“GTT TSA” means the transitional services agreement between a Group Company, as service recipient, and a member of the Sellers’ Group, as the service provider, in the agreed form, to be entered into on or before the Completion Date;
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“GTT TSA Excluded Service” has the meaning given to the term “Excluded Services” in the GTT TSA;
“GTT UK” means Interoute Communications Holdings Limited;
“GTT UK Shares” means 320,000 ordinary shares and 40,000,000 ordinary A shares in GTT UK, being the entire issued share capital of GTT UK;
“GTT US” means Interoute US LLC;
“GTT US Shares” means one hundred percent of the membership interests in GTT US, being the entire issued share capital of GTT US;
“Guarantee” means any guarantee, letter of credit, letter of support, bond, indemnity or similar assurance against 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, such obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness;
“Guaranteed InfraCo Contract” means any contract or arrangement the obligations of a Group Company under which are guaranteed pursuant to any Target Security;
“Guaranteed RemainCo Contract” means any contract or arrangement the obligations of a RemainCo Company under which are guaranteed pursuant to any RemainCo Security;
“H1 2021 EBITDA Amount” means the amount of net income before interest, income taxes, depreciation and amortization for the period from 1 January 2021 to 30 June 2021, in each case established in accordance with the accounting policies set out in Schedule 3;
“H1 2021 Adjusted EBITDA Amount” means:
(a) the H1 2021 EBITDA Amount:
(b) Less: any MRR included in (a) above which relates to a customer contract that is terminated or expires in the period 1 January 2021 to 30 June 2021;
(c) Less: any MRR included in (a) above which relates to a new customer contract where the first billing service period commences in the period 1 January 2021 to 30 June 2021 (provided such customer contract is for a period exceeding 12 months);
(d) the sum of (a) to (c) shall be multiplied by two (2);
(e) Plus: the annualised value of any MRR relating to a new customer contract where the first billing service period commences in the period 1 January 2021 to 30 June 2021 (provided such customer contract is for a period exceeding 12 months) (as included in (c) above); and minus
(f) the Missing Leases Cost;
“Hibernia Atlantic Cable System Limited Shares” means 19,830,272 shares of Hibernia Atlantic Cable System Limited, being the entire issued share capital of Hibernia Atlantic Cable System Limited;
“Hibernia Atlantic Communications (Canada) Company Shares” means 1,209 shares of Hibernia Atlantic Communications (Canada) Company, being the entire issued share capital of Hibernia Atlantic Communications (Canada) Company;
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“Hibernia Atlantic (Singapore) Private Limited Share” means one (1) share of Hibernia Atlantic (Singapore) Private Limited, being the entire issued share capital of Hibernia Atlantic (Singapore) Private Limited;
“Hibernia Atlantic (UK) Limited Shares” means two million, twenty thousand, four hundred and eight (2,020,408) shares of Hibernia Atlantic (UK) Limited, being the entire issued share capital of Hibernia Atlantic (UK) Limited;
“Hibernia Media (UK) Limited Shares” means one (1) share of Hibernia Media (UK) Limited, being the entire issued share capital of Hibernia Media (UK) Limited;
“High Yield Indenture” means the indenture, dated as of December 22, 2016, between GTT Communications, Inc (as successor to GTT Escrow Corporation), the initial guarantors party thereto and Wilmington Trust, National association, as amended, amended and restated, supplemented, waived or otherwise modified from time to time or replaced, in whole or in part, including through exchange transactions and/or refinancings and all guarantees, security documents and other documentation executed in connection therewith;
“Hoffnungsvoll Communication Private Limited Shares” means 10,000 shares of Hoffnungsvoll Communication Private Limited, being the entire issued share capital of Hoffnungsvoll Communication Private Limited;
“IBM Loans” means any financing agreements entered into between IBM United Kingdom Financial Services Limited as IGF or lender and Interoute Communications Limited as Client or borrower including, without limitation:
(a) a loan in amount USD 2,660,702.89 pursuant to a “Master Financing Agreement Transaction Document” dated 13 October 2017;
(b) a loan in amount USD 2,066,733.11 pursuant to a “Master Financing Agreement Transaction Document” dated 19 December 2017; and
(c) a loan in amount USD 3,281,013.10 pursuant to a “Master Financing Agreement Transaction Document” dated 27 March 2018,
and an “IBM Financing Master Financing Agreement” entered into in connection therewith, in each case as amended, amended and restated, supplemented, waived or otherwise modified from time to time;
“Identified Employee” means the individual agreed and identified between the parties in writing on or prior to the date of this Agreement;
“Identified RemainCo Security” means the Keybank Letter of Credit;
“Identified Seller Security” means the Guarantees or similar arrangements set out in Schedule 19;
“Immaterial Reorganisation Default” means any failure or default which is solely procedural, technical or administrative in nature, is capable of being remedied without material cost or delay and is immaterial in the context of the InfraCo Business or the Group Companies as a whole, provided that (i) any failure or default that might prejudice the ability of the Buyer to draw down the Funds in order to comply with its obligations under this Agreement, (ii) any failure or default as a result of which is not legally permissible for the Parties to proceed to Completion and (iii) any failure or default as a result of which any of the requirements set out in clause 7.11 is not satisfied shall, in each case, not be considered an Immaterial Reorganisation Default;
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“Information Memorandum” means the information memorandum in relation to the InfraCo Business prepared in connection with the Transaction dated April 2020, a copy of which is at document 1.2.1 in the Data Room;
“Infosys Contracts” means the contractual arrangements entered into between Infosys Ltd and/or any of its subsidiaries or Affiliates on the one hand and any Group Companies on the other hand in connection with the implementation and completion of the CMD Milestone and Future System Milestone;
“InfraCo Assets” has the meaning given to it in Part 2 of Schedule 10;
“InfraCo Bank Guarantees” means any Guarantee provided in the ordinary course of business by any provider of financing on behalf of any Group Company as security for the obligations of any Group Company including, without limitation, in relation to any customer and supplier arrangements and any leasing arrangements for the purposes of the InfraCo Business, for the avoidance of doubt in each case other than the Identified Seller Security;
“InfraCo Business” has the meaning given to it in Part 1 of Schedule 10;
“InfraCo Business Goodwill” has the meaning given to it in Part 2 of Schedule 10;
“InfraCo Business Licences” has the meaning given to it in Part 2 of Schedule 10;
“InfraCo Business Properties” has the meaning given to it in Part 2 of Schedule 10;
“InfraCo Contracts” means the Existing InfraCo Contracts, the InfraCo Part of the Shared InfraCo Contracts, the Transferring InfraCo Contracts and the InfraCo Part of the Shared RemainCo Contracts;
“InfraCo EBITDA” means the amount of net earnings before interest, taxes, depreciation and amortisation of the InfraCo Business;
“InfraCo Employees” means the InfraCo Group Company Employees, the InfraCo Non-Group Company Employees and any InfraCo New Employees who the Sellers and the Buyer agrees shall be InfraCo Employees prior to Completion in accordance with paragraph 9 of Part B of Schedule 16 (provided that the InfraCo Group Company Employees, the InfraCo Non-Group Company Employees and any InfraCo New Employees shall not exceed 450 in total);
“InfraCo Group Company Employees” means those employees of the Group Companies listed in Part A of Schedule 16;
“InfraCo IP Assignment Agreement” means an intellectual property assignment agreement in the agreed form (subject to any amendments made pursuant to clause 6.23) to effect a transfer of certain Intellectual Property Rights to a Group Company as part of the Reorganisation;
“InfraCo Liabilities” has the meaning given to it in Part 4 of Schedule 10;
“InfraCo MSA” means the master services agreement between a member of the Sellers’ Group, as service recipient, and a Group Company, as the service provider, in the agreed form, to be entered into on or before the Completion Date;
“InfraCo Network Assets” has the meaning given to it in Part 2 of Schedule 10;
“InfraCo New Employees” means any employee of any member of the Sellers’ Group who is newly employed by that member of the Sellers’ Group in the period between the date of this Agreement and Completion to work for the InfraCo Business;
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“InfraCo Non-Group Company Employees” means those employees of the Sellers’ Group (other than the Group Companies) listed in Part A of Schedule 16 that will transfer to a Group Company in accordance with Part B of Schedule 16 on or prior to Completion;
“InfraCo Non-Spanish Group Companies” has the meaning given in clause 4.18;
“InfraCo Non-US Group Companies” means each of the Group Companies other than the InfraCo US Group Company;
“InfraCo Part” means, in respect of a Shared InfraCo Contract, Shared RemainCo Contract, Shared InfraCo Claim or Shared RemainCo Claim, each part of it that relates exclusively to the InfraCo Business;
“InfraCo Plant and Equipment” has the meaning given to it in Part 2 of Schedule 10;
“InfraCo PoP Contract” means a PoP Contract under which the relevant InfraCo PoP occupies the relevant colocation facilities;
“InfraCo PoP” means the PoPs set out in 22.1.2.1.1 of the Data Room;
“InfraCo Security” means any Guarantee (including any Existing Guarantee) or Encumbrance (including any Existing Security) granted by any Group Company (or by a bank on behalf of any Group Company), and any Encumbrance (including any Existing Security) over the shares in any Group Company, in relation to the obligations to which any RemainCo Company will be subject following completion of the Reorganisation (including, but not limited to, any obligations under the Existing Financial Indebtedness and/or any Capital Markets Debt of any of the Group Companies or any other Financial Indebtedness and including the Identified Seller Security (in each case, other than any Target Security));
“InfraCo Transferring Assets” means all InfraCo Assets held by the members of the Sellers’ Group other than the Group Companies;
“InfraCo TSA” means the transitional services agreement between a member of the Sellers’ Group, as service recipient, and a Group Company, as the service provider, in the agreed form, to be entered into on or before the Completion Date;
“InfraCo US Group Company” means Interoute US LLC;
“Initial Purchase Price” has the meaning given in clause 3.3;
“Insolvency Event” means, in respect of any person:
(a) the person is unable to, states that it is unable to, or is declared under applicable law to be unable to, pay its debts as they fall due or stops or threatens to stop paying or suspend payment of its debts as they fall due or its debts generally, provided that this paragraph (a) shall not be triggered by discussions between, or transactions involving, the Group Companies and any lenders under the Credit Agreement or beneficial owners of notes under the High Yield Indenture;
(b) any indebtedness of the person is subject to a moratorium (including where a moratorium takes effect by operation of law or is declared in respect of any indebtedness of the person) but excluding a moratorium pursuant to any involuntary proceeding under the laws of the United States unless the same shall continue undismissed and unstayed for more than sixty (60) consecutive days or an order of relief is entered in any such proceeding;
(c) a receiver, trustee, custodian, liquidator, provisional liquidator, administrator, examiner, manager or comparable party has been appointed to any asset or property
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of the person or an event occurs which gives any other person a right to obtain such appointment;
(d) an order has been made, a resolution has been passed or proposed in a notice of meeting or in an announcement to any recognised securities exchange, a procedure has been commenced, or an application to court has been made, in each case for the winding-up, liquidation or dissolution of the person or for the entry into of any arrangement, compromise or composition with, or assignment for the benefit of, creditors of the person or any class of them, provided that this paragraph (d) shall not be triggered by discussions between, or out of court restructuring transactions involving, the Group Companies and any creditors of the Group Companies in progress as at the date of this Agreement;
(e) the person commences any case or proceeding under any bankruptcy, reorganisation (excluding, for the avoidance of doubt, the Reorganisation), arrangement, moratorium or similar law or statute;
(f) any other person properly enforces any security interest in any material asset or material property of such person; or
(g) anything analogous to the matters set out in (a) to (f) above occurs in relation to the person in any jurisdiction;
“Intellectual Property Rights” means any and all trade marks, service marks, trade names, business names, logos, get-up, patents, utility models, supplementary protection certificates, rights in inventions, discoveries and improvements, registered and unregistered design rights, copyright and related rights (including rights in computer programs), database rights, rights in goodwill (including the right to xxx for past, present and future infringements), domain names and URLs, rights to xxx for passing off and in unfair competition, rights in opposition proceedings and all other similar rights in any part of the world (including Know-how), including where such rights are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such registrations;
“Intercompany Loan Agreement” means any agreement evidencing any intercompany loan or other financial arrangement having similar effect entered into between a Group Company and another Group Company on arms’ length terms;
“Interoute" means Interoute Communications Holdings S.A. and its subsidiaries acquired by the Sellers’ Group pursuant to the sale and purchase agreement for the sale and purchase of Interoute Communications Holdings S.A. dated 23 February 2018;
“Ireland” means the Republic of Ireland (excluding Northern Ireland) and “Irish” shall be construed accordingly;
“Intra-group Debt” means together the GTT Cross-Perimeter Loans and the Group Company Cross-Perimeter Loans;
“Intra-Group Financing Payables” means all outstanding loans or other financing liabilities or obligations (including, for the avoidance of doubt, interest accrued and dividends declared or payable but not paid) owed by a Group Company to a member of the Sellers’ Group (other than a Group Company) as at the Completion Time, but excluding any item which falls to be included in calculating Working Capital;
“Intra-Group Financing Receivables” means all outstanding loans or other financing liabilities or obligations (including, for the avoidance of doubt, interest accrued and dividends declared or payable but not paid) owed by a member of the Sellers’ Group (other than a Group Company) to a Group Company as at the Completion Time, but excluding any item which falls to be included in calculating Working Capital;
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“IT Separation” means the implementation of the CMD Milestone, the Future System Milestone and of the IT Separation Steps Plan;
“IT Separation Steps Plan” has the mean given to it in paragraph 3.2 of Schedule 13;
“IT Systems” means: (a) the computer, telecommunications and network equipment used or owned by a Group Company (including PCs, mainframes and servers); and (b) the software used or owned by a Group Company, including software written or customised specifically for a Group Company and the off-the-shelf software applications used by the Group Companies;
“Keybank Letter of Credit” means the letter of credit described by the documents disclosed at 2.5.3.14 and 2.5.3.15 in the Data Room;
“Key Contract” means (i) each Contract with a Material Customer; and (ii) each of the top 25 RemainCo Contracts that are Customer Contracts by MRR, determined by reference to MMR in the last full calendar month immediately prior to Completion;
“Know-how” means non-trivial industrial and commercial information and techniques, in each case, in any form and not in the public domain, including technical specifications, technical data, technical plans and drawings, blueprints, schematics, formulae, methodologies, processes and procedures, operating instructions and conditions, test and research results, reports, analyses and instruction and training manuals;
“KPMG VDD Reports” means the updated financial VDD report, carve out balance sheet VDD report and tax VDD report, in each case to be prepared by KPMG in respect of the Group Companies and the InfraCo Business in respect of the financial year 2019;
“KPMG VDD Reports Deadline” has the meaning given to it in clause 6.25;
“Lender Consent” has the meaning given to it in clause 6.6;
“Letters of Credit” means those letters of credit listed in SCHEDULE 25 and only in relation to the amounts set out therein;
“Liabilities” means all liabilities, duties and obligations of every description, whether deriving from contract, common law, statute or otherwise, whether present or future, actual or contingent or ascertained or unascertained and whether owed or incurred severally or jointly or as principal or surety;
“Licence” means any licence to operate, consent, permit, authorisation, permission, exemption, registration or approval (including, but not limited to, any foreshore, cable landing point, marine, subsea, seabed , submarine or other leases or licences granted by any authority or third party in connection with the InfraCo Business’ use and operation of its subsea cables, routes and networks and cable landing stations and PoPs (including for the avoidance of doubt the Hibernia subsea cables, routes and networks);
“Licence Agreement” means the agreement in respect of the licence of certain Intellectual Property Rights, in the agreed form, to be entered into between a member of the Sellers’ Group and a Group Company with effect from the Completion Date;
“Licences-In” means an agreement by a third party to license or sub-license Intellectual Property Rights to a Group Company;
“Licences-Out” means an agreement by a Group Company to license or sub-license Intellectual Property Rights to a third party other than non-exclusive licences granted to customers of the Group in the ordinary course of business;
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“Long Stop Date” means the date falling twelve (12) calendar months after the date of this Agreement, or such other date as may be agreed in writing between the Sellers’ Representative and the Buyer;
“Losses” means losses, liabilities, damages, costs (including reasonable legal costs and experts’ and consultants’ fees), charges, expenses, actions, proceedings, claims and demands, in each case of any nature whatsoever;
“MAC Event” means any state of facts, circumstance, development, change or effect that, individually or in the aggregate, is having, or would reasonably be expected to have, a materially adverse effect on the operations, results of operations, or financial condition, of the InfraCo Business, taken as a whole, except for any such material adverse effect after the date of this Agreement arising out of, resulting from or relating to: (a) any change in general economic or political conditions that affects the industry generally (including, but not limited to, the Covid 19 pandemic) in which the InfraCo Business operates; (b) any act of terrorism, sabotage, military action or war (whether or not declared), in each case including any escalation or worsening thereof; (c) any adverse change arising from or relating to any actual or proposed change in accounting requirements applicable to any Group Company or, in each case, in the interpretation thereof (which, for the avoidance of doubt, excludes any violation of existing accounting rules not previously disclosed to the Buyer or otherwise dealt with under this Agreement); (d) the announcement of this Agreement or disclosure of this Agreement or the transactions contemplated by this Agreement (to the extent the disclosure in question was made by the Sellers, it must not have been made in breach of the terms of this Agreement); (e) compliance with the terms of this Agreement or actions which the Buyer has taken, consented to in writing or requested in writing; (f) the failure of the InfraCo Business or any Group Company to meet or achieve the results set forth in any projection, estimate, forecast or plan (it being acknowledged that the underlying cause of such failure may constitute a Material Adverse Effect); (g) the filing by any Seller or any member of the Sellers’ Group of the Chapter 11 Cases or the operation of any Seller or any member of the Sellers’ Group as a debtor in possession under the Bankruptcy Code if such filings contemplate, among other things, the consummation of the Transaction in accordance with an Acceptable RSA, an Acceptable PSA, or Acceptable Sale Order; and (h) any “event of default” or similar event under the Existing Debt Facilities if such “events of default” (i) are contemplated by or otherwise not inconsistent with an Acceptable RSA, an Acceptable PSA, or Acceptable Sale Order or (ii) do not result in a Seller Default under clause 5.5(a), in the case of each of the foregoing clauses (a) to (c) (inclusive), solely to the extent that it does not, and would not reasonably be expected to have a materially disproportionate adverse effect on the InfraCo Business and/or Group Companies and/or any of them, relative to other participants in the industries in which the Group Companies and/or the InfraCo Business operate;
“Management Agreements” means employment contracts to be agreed by the parties (including the Buyer) and the relevant members of the Senior Management Team (other than Xxxxxx Xxxx) prior to Completion and to be entered into by and between each of the Senior Management Team and the relevant Group Companies prior to Completion;
“Material Completion Obligations” has the meaning given to it in clause 7.5;
“Material Contract” has the meaning given to it in paragraph 7.7 of Schedule 5;
“Material Customers” means those customers listed in Part 1 of Schedule 8;
“Material Reorganisation Documents” means the templates of the following Reorganisation documents: the asset transfer agreement, the share transfer agreement, the assignment agreement and the loan agreement each of them in the agreed form; and the InfraCo IP Assignment Agreement, the RemainCo IP Assignment Agreement and the Licence Agreement;
“Material Suppliers” means those suppliers listed in Part 2 of Schedule 8;
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“Merger Notice” means a notice to the CMA in the prescribed form as contemplated by section 96 EA02;
“Microsoft” means Microsoft Ireland Operations Ltd;
“Microsoft Liens” means any of the following:
(a) an assignment agreement dated 31 May 2016 between each of Hibernia Express (Ireland) Limited, Hibernia Express (UK) Limited and Hibernia Express (Canada) Limited as assignor and Microsoft as assignee in relation to an IRU agreement and an O&M agreement, each between the parties thereto and NGS Limited and dated 17 June 2014 (the Hibernia Express Microsoft Contracts);
(b) an assignment agreement dated 31 May 2016 between each of Hibernia Atlantic Cable System Limited as assignor and Microsoft as assignee in relation to an IRU agreement and an O&M agreement, each between the parties thereto and NGS Limited and dated 17 June 2014 (the Hibernia Atlantic Microsoft Contracts and, together with the Hibernia Express Microsoft Contracts, the Hibernia Microsoft Contracts);
(c) a deed of guarantee and indemnity dated 21 September 2015 between Hibernia NGS Limited as guarantor and Microsoft as customer, as amended and restated 31 May 2016, in relation to the Hibernia Express Microsoft Contracts;
(d) a deed of guarantee and indemnity dated 21 September 2015 between Hibernia NGS Limited as guarantor and Microsoft as customer, as amended and restated 31 May 2016 in relation to the Hibernia Atlantic Microsoft Contracts;
(e) a non-disturbance and attornment agreement dated 31 May 2016 between MUFG Union Bank, N.A. as agent, Hibernia Express (Ireland) Limited as borrower, Hibernia NGS Limited, and Microsoft in relation to the Hibernia Express Microsoft Contracts;
(f) a non-disturbance and attornment agreement dated 31 May 2016 between MUFG Union Bank, N.A. as agent, Hibernia Atlantic Cable System Limited as guarantor, Hibernia NGS Limited, and Microsoft in relation to the Hibernia Atlantic Microsoft Contracts;
(g) an acknowledgement entered into by each of Hibernia Express (Ireland) Limited, Hibernia NGS Limited, Hibernia Atlantic Cable System Limited, Hibernia Express (Canada) Limited, Hibernia Atlantic U.S. LLC, Hibernia Atlantic Communications (Canada) Company, Hibernia Media (UK) Limited, Hibernia Atlantic (UK) Limited, Hibernia International Assets Inc., Hibernia Atlantic (Singapore) Private Limited, Hibernia Express (UK) Limited and Hibernia Networks (Netherlands) B.V. in relation to a lien subordination agreement between MUFG Union Bank, N.A. as agent and Microsoft dated 31 May 2016 in relation to the Hibernia Express Microsoft Contracts;
(h) an acknowledgement entered into by each of Hibernia Express (Ireland) Limited, Hibernia NGS Limited, Hibernia Atlantic Cable System Limited, Hibernia Express (Canada) Limited, Hibernia Atlantic U.S. LLC, Hibernia Atlantic Communications (Canada) Company, Hibernia Media (UK) Limited, Hibernia Atlantic (UK) Limited, Hibernia International Assets Inc., Hibernia Atlantic (Singapore) Private Limited, Hibernia Express (UK) Limited and Hibernia Networks (Netherlands) B.V. in relation to a lien subordination agreement between MUFG Union Bank, N.A. as lender agent and dated 31 May 2016 in relation to the Hibernia Atlantic Microsoft Contracts; and
(i) any other agreement or other document securing or guaranteeing, or otherwise entered into pursuant to, the obligations of any Target Company or Subsidiary to Microsoft or its Affiliates;
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“Microsoft Documents” has the meaning given to it in clause 6.14(a);
“Missing Leases” means any leases (whether finance leases or operating leases) which have been either:
(a) incorrectly allocated in the database of leases set out in the Data Room at 10.19.5 to the Sellers’ Group where they should have been allocated to the Group Companies; or
(b) omitted from the database of leases set out in the Data Room at 10.19.5,
and, in each case, to the extent the cost of any such leases has not been reflected in the Accounts;
“Missing Leases Cost” means the annual cost of the Missing Leases calculated in accordance with the Accounting Standards;
“MRR” means monthly recurring revenue;
“NRR” means non-recurring revenue;
“Names” means trade marks, service marks, business, company or trade names, logos or domain names;
“NGS Limited” has the meaning given to it in the Introduction;
“Notice” has the meaning given to it in clause 29.1;
“Original KPMG VDD Reports” means: (i) the financial VDD report prepared by KPMG dated 24 June 2020; (ii) the carve out balance sheet VDD report prepared by KPMG dated 11 August 2020; and (iii) the tax VDD report dated 3 July 2020, in each case prepared by KPMG in respect of the Group Companies and the InfraCo Business in respect of the financial year 2019;
“Owned Business IP” means the Owned Names, the Transferring IP Rights and any other Intellectual Property Rights which are owned by a Group Company;
“Owned Names” means any Names that include (in whole or in part) either of the marks INTEROUTE or HIBERNIA, but excluding any elements of Names which include in whole or in part any Sellers’ Trade Marks, in each case, owned or registered by any member of the Group on the Completion Date, including the marks INTEROUTE, HIBERNIA and any other Names set out in paragraph 1.7 of Schedule 15;
“Owned Trade Marks” means any Owned Names, but excluding any elements of such Names which are purely descriptive or non-distinctive or which include in whole or in part any Sellers’ Trade Marks;
“Outstanding Seller Guarantees and Encumbrances” means any Guarantees or Encumbrances provided by any RemainCo Company in relation to any obligations of any Group Company under any Existing Financial Indebtedness and/or the Capital Market Debt (which, for the avoidance of doubt, shall exclude any RemainCo Security);
“Pension Schemes” means:
(a) defined contribution schemes where the InfraCo Employees’ contributions and employer’s contributions are both invested and the proceeds used to buy a pension at retirement; and
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(b) defined benefit plans where the InfraCo Employees’ benefits are fixed in advance and their amount is based on the amount of the insured salary;
set out in the Data Room at 12.2.14;
“Personal Data” has the same meaning as the term “personal data” under the General Data Protection Regulation (Regulation (EU) 2016/679);
“Phase 1 Investigation” means an investigation by the CMA to enable it to decide whether to make a Phase 2 Reference;
“Phase 2 Reference” means a reference pursuant to Part 3 EA02, or pursuant to Article 5 of the Enterprise Xxx 0000 (Protection of Legitimate Interests) Order 2003, in each case to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Xxx 0000;
“Phoenix/Xxxx Matter” means those arrangements referred to on pages 12, 35, 39, 110 and 111 of the Tax VDD Report and all transactions, transaction steps, actions, measures, restructurings, effects and other matters mentioned or described in the Ernst & Young structure papers addressed to Interoute titled (i) “Project XXXX” dated 27 October 2011, (ii) “Project Phoenix” dated 9 May 2012, and (iii) “Project Phoenix and XXXX” Updated tax report dated 2 February 2015;
“PoP” means a point of presence or colocation facility owned, leased or occupied under licence;
“PoP Contract” means each contract, licence or lease to which one or more members of the Sellers’ Group is a party (as the customer) pursuant to which the relevant counterparty (as the provider) provides datacentre colocation space and associated facilities to the relevant member(s) of the Sellers’ Group;
“Prague Shared Property” has the meaning given to it in Schedule 17;
“Pre-Completion Tax Documents” has the meaning given to it in clause 16.1, provided that any Delayed Pre-Completion Tax Document shall not be a Pre-Completion Tax Document;
“Pre-Completion Tax Period” has the meaning given to it in clause 16.1;
“Pre-Completion Tax Returns” has the meaning given to it in clause 16.1, provided that any Delayed Pre-Completion Tax Return shall not be a Pre-Completion Tax Return;
“Prepaid Revenue” means any revenue billed upfront for the full contract term or any revenue billed in advance of providing services or performing obligations to which any such revenue relates and where such service or obligations are for a period in excess of at least twelve (12) calendar months from the billing date;
“Priming Facility Credit Agreement”, means the agreement dated as of December 28, 2020 among the Principal Seller, GTT Communications, the lenders party thereto and Delaware Trust Company, as administrative agent and collateral agent, as amended, amended and restated, supplemented, waived or otherwise modified from time to time;
“Principal Seller” has the meaning given to it in the Introduction;
“Principal Seller FY2020 Financial Statements” has the meaning given to it in clause 4.4(e);
“Property” means the properties listed in Schedule 7;
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“Q2 Audit” has the meaning given to it in clause 6.3(b);
“Q2 Report” means the Principal Seller’s quarterly report on Form 10-Q for the quarter ended June 30, 2020;
“Reference Working Capital” means the amount equal to USD 42,200,000;
“Regulation” the Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings;
“Regulatory Authorities” has the meaning given to it in clause 4.2;
“Release Documents” has the meaning given to it in clause 6.11;
“Releases” has the meaning given to it in clause 6.9;
“Relevant Part” means the InfraCo Part and/or RemainCo Part of a Shared InfraCo Contract and/or Shared RemainCo Contract, as the context requires;
“Relevant Shares” means the Shares to be transferred by each of the Sellers pursuant to this Agreement as set out in column 2 of Schedule 1;
“Relief” includes any loss, relief, allowance, credit, exemption or set off for Tax or any deduction in computing income, profits or gains for the purposes of Tax and any right to a repayment of Tax or to a payment in respect of Tax;
“RemainCo Assets” has the meaning given to it in Part 3 of Schedule 10;
“RemainCo Bank Guarantees” means any Guarantee provided in the ordinary course of business by any provider of financing on behalf of any RemainCo Company as security for the obligations of any RemainCo Company in relation to any customer and supplier arrangements and any leasing arrangements;
“RemainCo Business” means all of the business and activities of the Sellers’ Group (including the Group Companies) excluding the InfraCo Business, but including business and activities of providing wide area networking, Internet, managed services and unified communications services to customers and consisting of those assets and liabilities, in each case, from which the revenues are generated and the costs are incurred;
“RemainCo Companies” means the Sellers’ Group excluding the Group Companies and “RemainCo Company” means any one of them;
“RemainCo Contracts” means the Existing RemainCo Contracts, the RemainCo Part of the Shared RemainCo Contracts, the Transferring RemainCo Contracts and the RemainCo Part of the Shared InfraCo Contracts;
“RemainCo Employees” means the employees (i) currently employed by a Group Company or (ii) who at or prior to Completion become employed by a Group Company, in each case other than the InfraCo Employees;
“RemainCo IP Assignment Agreement” means an intellectual property assignment agreement, in the agreed form (subject to any amendments made pursuant to clauses 6.23), to effect a transfer of certain Intellectual Property Rights to a member of the Sellers’ Group as part of the Reorganisation;
“RemainCo Liabilities” has the meaning given to it in Part 5 of Schedule 10;
“RemainCo Network Assets” has the meaning given to it in Part 3 of Schedule 10;
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“RemainCo Part” means, in respect of a Shared InfraCo Contract, Shared RemainCo Contract, Shared InfraCo Claim or Shared RemainCo Claim, the part of it that does not exclusively relate to the InfraCo Business;
“RemainCo PoP Contract” means a PoP Contract under which the relevant RemainCo PoP occupies the relevant colocation facilities;
“RemainCo PoP” means all PoPs held by the Sellers’ Group other than those set out in 22.1.2.1.1 of the Data Room;
“RemainCo Replacement Security” has the meaning given to it in clause 10.3;
“RemainCo Security” means any Guarantee, Encumbrance, RemainCo Bank Guarantees or cash deposit provided in the ordinary course of business by any RemainCo Company (or by any provider of financing on behalf of any RemainCo Company) in relation to the obligations to which any Group Company will be subject following completion of the Reorganisation in relation to any customer and supplier arrangements and any leasing arrangements for the purposes of the InfraCo Business to any person that is not a member of the Sellers’ Group, including the Identified RemainCo Security (but excluding any Outstanding Seller Guarantees and Encumbrances and any letters of comfort issued by any member of the Sellers’ Group for the purposes of statutory audits of any Group Companies);
“RemainCo Transferring Assets” means all RemainCo Assets held by the members of the Group;
“Reorganisation” means the reorganisation of the Sellers’ Group and its assets and liabilities as detailed in and contemplated by the transactions and other matters set out in the Separation Steps Plans, clauses 6.1 and 6.2 and the Separation Schedules to effect the separation of the InfraCo Business from the Sellers’ Group to operate on a standalone basis from Completion pursuant to the Transaction Documents, including all transactions, steps, actions, documents and other matters necessary or otherwise agreed to be taken in connection therewith;
“Reorganisation Default Event” has the meaning given to it in clause 5.4;
“Reorganisation Indemnity” has the meaning given to it in clause 8.12;
“Reorganisation Indemnity Claim” means any claim arising under or in connection with the Reorganisation Indemnity;
“Reorganisation Tax Claim” means a claim under paragraph 2.2 of Schedule 20;
“Representatives” means, in relation to a party, its respective Affiliates and the directors, officers, employees, agents, advisers, accountants, auditors, insurers and consultants of that party and/or of its respective Affiliates;
“Restructuring Claim” means any claim by the Buyer under clause 4.4(g), clause 4.4(h), clause 4.7(b), clause 4.7(c), clause 4.7(d), clause 4.25(a), clause 4.25(c), clause 4.25(d), paragraphs 1.2(c), 1.2(d) or 1.2(e) of Schedule 9 or paragraphs 1.5 1.6 or 1.7 of Part 1 of Schedule 4;
“Retained RemainCo Security” has the meaning given to it in clause 10.5;
“RSA” means a restructuring support agreement;
“RSA Condition” has the meaning given to it in clause 4.4(h);
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“RSA Lender Parties” means (i) the holders of in excess of 66.67% of the notes outstanding under the High Yield indenture, (ii) the holders of 66.67% of the obligations outstanding under the Credit Agreement and (iii) the holders of 66.67% of the obligations outstanding under the Priming Facility Credit Agreement; provided that, in the case of clause (iii), such holders shall not be required to sign such restructuring support agreement in order for such restructuring support agreement to constitute an “RSA” unless the consent of such holders is needed in order to effectuate or implement the transactions contemplated by the RSA;
“Sale Proceeds” means the amount of Consideration received by a Seller;
“Sale Protection Order” has the meaning given to it in clause 4.4(g)(ii)(B);
“Saving” means the reduction or elimination of any liability of any Group Company to make an actual payment of Tax (at a time when the relevant Group Company is a member of the Buyer’s Group) by the use of any Relief arising wholly as a result of a liability for Tax in respect of which the Sellers have made a payment for a breach of a Tax Warranty, or Tax Covenant Claim or Separation Claim in respect of Tax as a result of such payment by the Sellers, but excluding any Relief which has already been taken into account in determining the amount payable by the Sellers for breach of the relevant Tax Warranty or Tax Covenant Claim or Separation Claim in respect of Tax, as the case may be;
“Secured RemainCo Contract” means any contract or arrangement the obligations of a Group Company under which are guaranteed or secured pursuant to RemainCo Security;
“Sell-side Reports” means any due diligence report made available to the Buyer by the Sellers in connection with the Transaction, including but not limited to: (i) the Commercial VDD report prepared by Analysys Xxxxx dated 17 April 2020, including the addressable market export and walkthrough 17 April 2020; (ii) ULL Competitive Technical Assessment Preliminary Report dated March 2020; (iii) the Technical VDD report prepared by Analysys Xxxxx dated 12 May 2020; (iv) the Original KPMG VDD Reports; (v) the Separation Steps Plan dated 8 July 2020; and (vi) the Cash Tax model prepared by Ernst & Young version 5.5 dated 8 July 2020;
“Seller Default” has the meaning given to it in clause 5.5;
“Sellers” has the meaning given to it in the Introduction, and “Seller” means any of them;
“Sellers’ Group” means the Sellers and their Affiliates from time to time, but excluding from Completion, each Group Company;
“Sellers’ Representative” has the meaning given to it in clause 18.1;
“Sellers’ Solicitors” means Xxxxxxx Procter (UK) LLP of 000 Xxxxxxxxx, Xxxxxx XX0X 0XX;
“Sellers’ Solicitors Bank Account” means the bank account details set out below, to be confirmed by the Sellers’ Solicitors in writing:
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| Account Name Account Number Currency Sort Code SWIFT (BIC) IBAN Bank Bank Branch Address | Xxxxxxx Procter (UK) LLP Client Account 00000000 USD 40-12-76 XXXXXX0X XX00XXXX00000000000000 HSBC UK Bank plc 6th floor, 00 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX | ||||
| Account Name Account Number Currency Sort Code SWIFT (BIC) IBAN Bank | Xxxxxxx Procter (UK) LLP Client Account GOPECA-EURC EURO 16-00-32 XXXXXX0X XX00XXXX00000000000000 Royal Bank of Scotland | ||||
“Sellers’ Tax Insurance Policies” means the following insurance policies, each dated 25 March 2015 and originally provided to Emasan AG and Turbo Holdings Lux II S.à x.x. and assigned to the Principal Seller on 31 May 2018:
(a) the financial interest coverage insurance policy with policy number 15.538.845 provided by Zurich Insurance Company Ltd;
(b) the excess insurance policy with policy number MAZF31A006 provided by AIG Europe Limited, London, Opfikon Branch;
(c) the quota share excess financial interest coverage insurance policy with policy number P08198C15A provided by AWH Syndicate 2232;
(d) the excess insurance policy with policy number W0599415PPBX provided by certain underwriters at Lloyd’s care of Xxxxxxx Solutions Limited; and
(e) the excess insurance policy with policy number CH00009041BL15A provided by XL Insurance Switzerland Ltd;
“Sellers’ Trade Marks” means any Names, in each case, owned or registered by any member of the Sellers’ Group on the Completion Date, but excluding any elements of such Names which are purely descriptive or non-distinctive and excluding any of the Owned Trade Marks;
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“Senior Management Team” means, collectively, Xxxxx XxXxx, Xxxx Beer, Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Xxxxx X’Xxxxx, Xxxxx Xxxxxxx and Xxxxxx Xxxx;
“Separation Asset List” means each list of InfraCo Assets or document containing details of InfraCo Assets, as listed or referred to under the heading “Separation Asset Lists” in Part 7 of Schedule 10;
“Separation Committee” has the meaning given to it in Schedule 13;
“Separation De Minimis Claim” has the meaning given to it in Part 4 of Schedule 6;
“Separation Schedules” means Schedule 10 to Schedule 18 (inclusive) of this Agreement;
“Separation Steps Plans” means (a) the draft “Project Apollo Separation Steps Plan” prepared by Ernst & Young LLP and dated 8 July 2020, as may be supplemented, adjusted or amended in accordance with Schedule 13; and (b) such other plans, papers and/or documents as may be agreed between the parties or by the Separation Committee relating to the steps to be taken to implement the Reorganisation;
“Serbian Additional Asset” means a Cisco router (Cisco 892FSP) included in the primary ledger of GTT Communications d.o.o. Beograd;
“SG&A” means selling, general and administrative expenses;
“Shared Infraco Claims” has the meaning given to it in Part 2 of Schedule 10;
“Shared Infraco Contracts” has the meaning given to it in Part 2 of Schedule 10;
“Shared Properties” has the meaning given to it in Schedule 17 (and “Shared Property” means any one of them);
“Shared RemainCo Claims” has the meaning given to it in Part 2 of Schedule 10;
“Shared RemainCo Contracts” has the meaning given to it in Part 2 of Schedule 10;
“Shares” means, collectively, GTT UK Shares, GTT US Shares, GTT NGS Shares and the GTT Ireland Shares, held by the Sellers in the manner as set out in Schedule 1;
“Sofia Shared Property” has the meaning given to it in Schedule 17;
“Spanish Regulatory Approval” has the meaning given in clause 4.18;
“Specific Accounting Treatments” has the meaning given in paragraph 1.1(b)(i) of Part A, Part 2 of Schedule 3;
“Specific Tax Covenant” means each of paragraphs 2.3(a), 2.3(b), 2.3(c) and 2.3(d) of Schedule 20;
“Specific Tax Covenant Claim” means a claim under a Specific Tax Covenant;
“Straddle Period” means any accounting period of a Group Company beginning before Completion and ending after Completion;
“Subsidiaries” means the direct and indirect subsidiaries of the Target Companies, short particulars of which are set out in Part 2 of Schedule 2, and each a “Subsidiary”;
“Successor Agreement” has the meaning given to it in clause 1.3(r);
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“Supplier Contract” means:
(a) in respect of a Transferring InfraCo Contract or a Shared RemainCo Contract, a contract under which a member of the Sellers’ Group (other than a Group Company) contracts to receive goods and/or services from the relevant counterparty/ies; and
(b) in respect of a Transferring RemainCo Contract or a Shared InfraCo Contract, a contract under which a Group Company contracts to receive goods and/or services from the relevant counterparty/ies;
“Supplier Party” has the meaning given to it in the GTT TSA;
“Surviving Provisions” means clauses 1 (Definitions And Interpretation), 4.25 (Break-Up Fee) 12 (Announcements), 18 (Sellers’ Representative), 19 (Assignment), 13 (Confidentiality) 20 (Costs And Expenses), 22 (Variations And Waivers), 23 (Severance), 24 (Remedies), 25 (Several Liability), 26 (Entire Agreement), 28 (Third Party Rights), 29 (Notices), 33 (Governing Language), 34 (Governing Law And Jurisdiction);
“Systems Milestone” means the CMD Milestone and the Future System Milestone;
“System Milestone Completion” means the CMD Milestone Completion and the Future System Milestone Completion;
“Systems Committee” has the meaning giving to it in Schedule 13;
“Target Companies” mean together GTT UK, GTT US and each of the entities comprising GTT NGS, short particulars of which are set out in Part 1 of Schedule 2;
“Target Security” means any Guarantee, Encumbrance, InfraCo Bank Guarantees or cash deposit provided in the ordinary course of business by any Group Company (or by any provider of financing on behalf of any Group Company) in relation to the obligations to which any Group Company will be subject following completion of the Reorganisation in relation to any customer and supplier arrangements and any leasing arrangements for the purposes of the InfraCo Business to any person that is not a member of the Sellers’ Group (excluding any InfraCo Security and excluding any Identified Seller Security);
“Tax Covenant” means the covenants against Tax set out in Schedule 20 of the Agreement;
“Tax Covenant Claim” means a claim pursuant to the covenant set out in paragraph 2.1 of Schedule 20, a Reorganisation Tax Claim and/or a Specific Tax Covenant Claim;
“Tax Policies” has the meaning given to it in paragraph 8 of Part 1 of Schedule 6;
“Tax Refund” means a repayment or credit in respect of Tax paid by a Group Company and related to any period before Completion, to the extent that such repayment or credit was not taken into account in the Completion Statements as an asset, provided that a credit shall only constitute a Tax Refund if and to the extent it leads to a reduction or elimination of an obligation to make an actual payment of a liability to Tax by a Group Company;
“Tax VDD Report” means the Tax VDD Report prepared by KPMG dated 3 July 2020 in respect of the Group Companies and the InfraCo Business;
“Tax Warranties” means the statements set out in Part 3 of Schedule 5, and each a “Tax Warranty”;
“Tax Warranty Claim” means any claim made by or on behalf of a Buyer for a breach of a Tax Warranty;
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“Taxation” or “Tax” means all forms of taxation, duties, imposts and levies, whether of the United Kingdom or elsewhere, including income tax (including income tax or amounts equivalent to or in respect of income tax required to be deducted or withheld from or accounted for in respect of any payment), corporation tax, advance corporation tax, capital gains tax, inheritance tax, VAT, customs and other import or export duties, excise duties, stamp duty, stamp duty reserve tax, stamp duty land tax, National Insurance and social security or other similar contributions and any interest, surcharge, penalty or fine in relation thereto (in all cases);
“Taxation Authority” means HM Revenue & Customs and any other governmental, state, federal, provincial, local, governmental or municipal authority, body or official competent to impose, administer or collect any Taxation liability whether in the UK or elsewhere in the world;
“Technical Change” means a change to the System Milestone (or to its implementation) which is not a change to the IT Separation Steps Plan, but is change to a system of a type that would customarily be notified to stakeholders by the RemainCo Business, in each case, via change management or release management processes, including patches, bug fixes, and the date the change is scheduled to be implemented;
“Technical Expert” means an expert appointed pursuant to paragraph 3 of Schedule 13;
“Termination Date” has the meaning given to it in clause 4.23;
“Termination Event” has the meaning given to it in clause 5.1;
“the date of this Agreement” means 16 October 2020;
“Third Party Valuation” has the meaning given to it in clause 3.5(a);
“Title Warranties” means the statements set out in Part 1 of Schedule 5, and each a “Title Warranty”;
“Title Warranty Claim” means any claim made by or on behalf of a Buyer for a breach of a Title Warranty;
“Transaction” means the transactions contemplated by the Transaction Documents;
“Transaction Documents” means this Agreement, the Equity Commitment Letter, the Disclosure Letter, the Completion Disclosure Letter, the InfraCo TSA, the InfraCo MSA, the GTT MSA, the GTT TSA and the Material Reorganisation Documents, all of the agreed form documents and all other documents which, in each case, are entered into pursuant to this Agreement and/or any of the agreed form documents, and each a “Transaction Document”; “Transfer Regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006 (as amended from time to time) and any equivalent provisions under any applicable law;
“Transfer Taxes” has the meaning given to it in clause 20.2;
“Transferring InfraCo Business Properties” means the real properties which are owned, leased, licenced or otherwise held by one or more of the RemainCo Companies and are used exclusively or predominantly in connection with the InfraCo Business as set out in the Properties List and classified as such pursuant to paragraph 2.3 of Schedule 17 (and “Transferring InfraCo Business Property” means any one of them), and for the avoidance of doubt this comprises those properties which are InfraCo Business Properties but without a Group Company as tenant;
“Transferring InfraCo Claims” has the meaning given to it in Part 2 of Schedule 10;
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“Transferring InfraCo Contracts” has the meaning given to it in Part 2 of Schedule 10;
“Transferring InfraCo Liabilities” means all InfraCo Liabilities held by the Sellers’ Group other than the Group Companies;
“Transferring IP Rights” has the meaning given to it in Part 2 of Schedule 10;
“Transferring IT Systems” has the meaning given to it in Part 2 of Schedule 10;
“Transferring Properties” means the Transferring InfraCo Business Properties and the Transferring RemainCo Business Properties (and “Transferring Property” means any one of them);
“Transferring RemainCo Business Properties” means the real properties which are owned, leased, licenced or otherwise held by a Group Company and are used exclusively in connection with the RemainCo Business as set out in the Properties List and classified as such pursuant to paragraph 2.3 of Schedule 17 (and “Transferring RemainCo Business Property” means any one of them);
“Transferring RemainCo Claims” has the meaning given to it in Part 3 of Schedule 10;
“Transferring RemainCo Contracts” has the meaning given to it in Part 3 of Schedule 10;
“Transferring RemainCo Liabilities” means all RemainCo Liabilities held by the Group Companies;
“UK” means the United Kingdom of Great Britain and Northern Ireland;
“US” means the United States of America;
“VAT” means:
(a) value added tax imposed pursuant to VATA 1994 and legislation and regulations similar or supplemental thereto;
(b) any tax imposed in compliance with the European Council directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and
(c) any other tax of a similar nature, whether imposed in a member state of the European Union in substitute for, or levied in addition to, the tax referred to in (b) above, or elsewhere;
“VATA 1994” means the Value Added Tax Xxx 0000;
“W&I Policy” means any warranty and indemnity insurance policy issued in favour of the Buyer on or following the date of this Agreement in respect of the transactions contemplated by this Agreement (the cost of such policy being wholly for the account of the Buyer);
“Warranties” means the Title Warranties and the Business Warranties, and each a “Warranty”;
“Warranty Claim” means any claim made by or on behalf of a Buyer for a breach of a Title Warranty or a Business Warranty;
“Working Capital” means the aggregate of the amounts of the Target Companies comprising each of the line items identified in the net column headed “Working Capital” in Part C of Part 2 Schedule 3 (including trade receivables and trade payables owed to the Sellers’ Group arising in the ordinary course of trading of the InfraCo Business and including all amounts that will be
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payable by a Group Company under the Infosys Contracts irrespective of whether such amounts have actually been invoiced, but excluding any items included in the Cash Amount and/or the Debt Amount);
“Working Capital Adjustment” means the amount by which the Completion Working Capital is greater than the Reference Working Capital (in which case such amount shall be expressed as a positive figure) or by which the Completion Working Capital is less than (or more negative than) the Reference Working Capital (in which case such amount shall be expressed as a negative figure), to be established in accordance with Schedule 3. If the Completion Working Capital is equal to the Reference Working Capital the amount of the Working Capital Adjustment shall be zero; and
“Working Capital Statement” means a statement setting out the Completion Working Capital of the Target Companies to be provided by the Buyer to the Sellers in accordance with Schedule 3.
1.2 The headings of clauses and Schedules are included for ease of reference only and shall not affect the interpretation of this Agreement.
1.3 In this Agreement, unless expressly stated otherwise:
(a) references to “parties”, “clauses” and “Schedules” are references, respectively, to the parties, clauses and Schedules of this Agreement;
(b) the words “include” and “including” (or any similar term) shall not be construed as implying any limitation;
(c) general words introduced by the word “other” (or any similar term) shall not be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things;
(d) the word “person” shall include any individual, firm, company, corporation, or other body corporate, government, state or agency of a state or any joint venture, association or partnership, works council or employee representative body (whether or not having separate legal personality);
(e) words importing one gender shall be treated as importing any gender, words importing the singular shall be treated as importing the plural and vice versa, and words importing the whole shall be treated as including a reference to any part thereof;
(f) the words “in writing” or “written” shall include any non-transitory form of visible reproduction of words;
(g) a reference to a document “in the agreed form” means a document in a form agreed by each of the parties and:
(i) signed by or on behalf of the parties to such document; or
(ii) initialled by or on behalf of the parties (including by the Sellers’ Solicitors on behalf of the Sellers and by the Buyer’s Solicitors on behalf of the Buyer),
for the purposes of identification;
(h) the phrases “to the extent” and “to the extent that” are used to indicate an element of degree and are not synonymous with the word “if”;
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(i) references to the time of day or date shall be construed as references to the time or date prevailing in London, UK;
(j) references to “£” shall be references to pounds sterling, being the lawful currency of the UK;
(k) references to “$”shall be references to U.S. Dollar, being the lawful currency of the US;
(l) references to “€” shall be references to euro, being the lawful currency member states of the European Union that have adopted and retained a common single currency through monetary union in accordance with European Union treaty law, as amended from time to time;
(m) references in any Warranty to any monetary sum expressed in pounds sterling (£) or euro (€) or U.S. Dollars ($) shall, where such sum is referable in whole or part to a particular jurisdiction, be deemed to be a reference to an equivalent amount in the local currency of that jurisdiction translated at the Exchange Rate on the date of this Agreement;
(n) where it is necessary to determine whether a monetary limit or threshold set out in Schedule 6 has been reached or exceeded (as the case may be) and the value of the relevant Claim, Tax Covenant Claim or Separation Claim, or any of the relevant Claims, Tax Covenant Claims or Separation Claims, is expressed in a currency other than euro (€), the value of each such Claim, Tax Covenant Claim or Separation Claim shall be translated into euro (€) by reference to the Exchange Rate on the date that written notification of the existence of such Claim, Tax Covenant Claim or Separation Claim is sent to the Sellers from the Buyer in accordance with paragraph 2 of Schedule 6 or, if such day is not a Business Day, on the Business Day immediately preceding such day;
(o) where any provision of this Agreement is qualified or phrased by reference to “material” or “materiality”, such reference shall, unless specified to the contrary, be construed as a reference to materiality in the context of the InfraCo Business taken as a whole and where any provision of any Warranty is qualified by reference to a material adverse effect, such reference shall be construed as a reference to a material adverse effect on the financial position and/or the financial performance of the InfraCo Business taken as a whole;
(p) a reference to a statute, statutory provision or subordinate legislation (“legislation”) is a reference to such legislation as in force at the date of this Agreement;
(q) a reference to any document other than this Agreement is a reference to that other document as amended, varied, supplemented, superseded or novated (in each case, other than in breach of the provisions of this Agreement) from time to time;
(r) a reference to the Credit Agreement or the High Yield Indenture or the IBM Loans (or to any party to, or any term defined in, either of the foregoing) shall be construed in accordance with clause 1.3(q) above and in particular shall include any amendments, variations and supplements to such Credit Agreement or High Yield Indenture or the IBM Loans (as applicable) and any successor or replacement agreement(s) entered into in connection with any extension, refinancing, restructuring or replacement of the Financial Indebtedness incurred under the Credit Agreement and/or the High Yield Indenture or the IBM Loans. In the event that the Credit Agreement or the High Yield Indenture or the IBM Loans has been amended, varied, supplemented, superseded or novated or any successor or replacement(s) have been entered into (any of the foregoing being a “Successor Agreement”), references in this Agreement (in particular clause 5) to specific provisions and defined terms of the Credit Agreement
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or the High Yield Indenture or the IBM Loans respectively shall be construed as references to the equivalent provisions or defined terms in the Successor Agreement(s). If such equivalent provisions or definitions do not exist in the Successor Agreement(s) (or if the Credit Agreement or High Yield Indenture or the IBM Loans is terminated and not replaced), then references in this Agreement to particular provisions and defined terms of the Credit Agreement or the High Yield Indenture or the IBM Loans shall be deemed to be references to such provisions and defined terms, as the case may be, as they existed in the Credit Agreement or High Yield Indenture or the IBM Loans (as applicable) immediately prior to entry into the Successor Agreement(s) or termination (as applicable); and
(s) a reference to a “holding company” or a “subsidiary” means a holding company or subsidiary as defined in section 1159 of the Act, save that a company shall be treated for the purposes of the membership requirement contained in sections 1159(1)(b) and (c) as a member of another company even if its shares in that other company are registered in the name of (i) its nominee or (ii) another person (or its nominee) by way of security or in connection with the taking of security. A reference to an “undertaking” shall be construed in accordance with section 1161 of the Act and a reference to a “parent company” or a “subsidiary undertaking” means, respectively, a parent company or subsidiary undertaking as defined in section 1162 of the Act, save that an undertaking shall be treated for the purposes of the membership requirement in sections 1162(2)(b) and (d) and section 1162(3)(a) as a member of another undertaking even if its shares in that other undertaking are registered in the name of (i) its nominee or (ii) another person (or its nominee) by way of security or in connection with the taking of security.
1.4 References to any English legal term or legal concept shall in respect of any jurisdiction other than England, other than where stated otherwise, be deemed to include that which most approximates in that jurisdiction to such English legal term or legal concept. This shall not affect any express terms relating to choice of law or jurisdiction.
2. SALE AND PURCHASE OF SHARES
2.1 Subject to and on the terms of this Agreement on Completion each Seller shall sell (or procure to be sold) and the Buyer shall purchase the full legal and beneficial title to the Shares set opposite that Seller’s name in column (2) of the table in Schedule 1, in each case together with all rights attaching or accruing to such Shares at Completion and free from all Encumbrances.
2.2 Subject to any agreement in writing between the parties to the contrary pursuant to clause 4.17 or clause 4.18, neither the Sellers nor the Buyer shall be obliged to complete the sale or purchase of any of the Shares unless all the Shares are sold and purchased in accordance with this Agreement.
2.3 The Buyer may, by written notice to the Principal Seller no later than ten (10) Business Days prior to the Completion Date, elect for one or more of its Affiliates (each, a “Designated Buyer”) to purchase any of Shares from the relevant Seller in respect of such Shares. If the Buyer makes any such election, references in this Agreement to the Buyer shall be deemed to be references to the relevant Designated Buyer in respect of the relevant share transfer. The Buyer shall not be relieved of any of its obligations under this Agreement as a result of any such election.
3. CONSIDERATION
3.1 Amount
The aggregate Consideration for the Shares (the “Consideration”) shall be equal to:
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(a) the Aggregate Base Purchase Price; plus
(b) the Cash Amount; plus (or minus, as applicable)
(c) the Working Capital Adjustment (if any); minus
(d) the Debt Amount; minus
(e) the EBITDA Adjustment (if any); plus
(f) the Earn-Out Payment (if any).
The Cash Amount, the Debt Amount, the Working Capital Adjustment and the EBITDA Adjustment shall be established in accordance with Schedule 3 (“Establishment of the Consideration”).
3.2 Initial Purchase Price
3.3 The “Initial Purchase Price” payable at Completion pursuant to the provisions of clause 7 and Schedule 3 shall be equal to:
(a) the Aggregate Base Purchase Price; plus
(b) the Estimated Cash Amount; plus (or minus, as applicable)
(c) the Estimated Working Capital Adjustment (if any); minus
(d) the Estimated Debt Amount; and minus
(e) the Estimated EBITDA Adjustment (if any).
3.4 The payment of the Initial Purchase Price shall be made in Euros up to the amount of the Euro Proceeds and thereafter in U.S. Dollars.
3.5 The parties agree that the allocation of the Consideration between the Relevant Shares shall be determined after the date of this Agreement and before Completion in accordance with this clause:
(a) The Consideration shall be allocated between the Relevant Shares on the basis of a reasonable allocation in accordance with generally accepted valuation principles and reflecting the fair market value of each of the Target Companies as at the date of the independent third party valuation to be carried out by EY on behalf of the Sellers (the “Third Party Valuation”), subject to the facts and circumstances prevailing at the time of the Third Party Valuation.
(b) No later than thirty (30) Business Days prior to Completion, the Sellers shall prepare in good faith and provide a Notice to the Buyer setting out and apportioning the Aggregate Base Purchase Price for the Relevant Shares and the applicable currencies substantially in the form set out in Schedule 1 and consistent with (a) above (the “Allocation Notice”) together with all supporting materials and calculations necessary to allow the Buyer to establish the basis on which the Sellers have prepared the Allocation Notice and the allocation of the Aggregate Base Purchase Price.
(c) Within fifteen (15) Business Days of receipt of the Allocation Notice, the Buyer may, taking into account all relevant details relating to the Third Party Valuation and the value of the underlying Target Companies, submit reasonable comments on the Allocation Notice by Notice to the Sellers, together with a version of the Allocation
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Notice reflecting such comments (the “Buyer’s Allocation Notice”). The Sellers shall consider any such comments in good faith and to the extent that the Sellers do not agree with such comments, the parties shall thereafter work together, acting reasonably and in good faith, to resolve any disputes within ten (10) Business Days.
(d) The Sellers shall, acting reasonably and in good faith, take into account the agreed outcomes (if any) of the good faith discussions under (c) above and will, no later than ten (10) Business Days prior to Completion, provide the Buyer with a revised Allocation Notice (the “Revised Allocation Notice”) and such Revised Allocation Notice shall (in the absence of fraud or manifest error) constitute the final and binding Allocation Notice for the purpose of this Agreement.
3.6 For the purpose of this clause 3 and Schedule 3, the “EBITDA Adjustment” shall be calculated as follows:
(a) if the H1 2021 Adjusted EBITDA Amount is equal to or exceeds $160,000,000, the H1 2021 EBITDA Adjustment shall be an amount equal to zero (0); and
(b) if the H1 2021 Adjusted EBITDA Amount is less than $160,000,000, the H1 2021 EBITDA Adjustment shall be an amount equal to: 13.2 times ($160,000,000 minus the H1 2021 Adjusted EBITDA Amount) (13.2 x ($160,000,000 - the H1 2021 Adjusted EBITDA Amount)), provided that in no circumstances shall the EBITDA Adjustment under this clause 3.6(b) exceed $75,000,000 (and if the EBITDA Adjustment would, but for the foregoing, exceed that amount, then the EBITDA Adjustment shall be $75,000,000),
and the EBITDA Adjustment shall be calculated in accordance with the worked examples set out in Part D of Part 2 of Schedule 3.
3.7 To enable the Buyer to monitor the likely final Cash Amount, final Debt Amount, final Working Capital Adjustment and the final EBITDA Adjustment, as soon as reasonably practicable but no later than the forty fifth (45th) Business Day following the first date of each month between 1 January 2021 and Completion, the Sellers shall deliver to the Buyer a written statement containing the amounts of the Estimated Cash Amount, the Estimated Debt Amount, the Estimated Working Capital Adjustment and the Estimated EBITDA Adjustment reflecting the Sellers’ good faith estimate of such amounts as at the end of the preceding calendar month, in each case assuming that Completion occurs on the Long Stop Date. The first written statement to be delivered under this clause shall be delivered on the forty fifth (45th) Business Day after 1 January 2021.
3.8 On the date that is ten (10) Business Days after the date on which the last Condition is satisfied, the Sellers shall deliver to the Buyer a written statement containing the amounts of the Estimated Cash Amount, the Estimated Debt Amount, the Estimated Working Capital Adjustment and the Estimated EBITDA Adjustment (the “Completion Estimates Statement”) in each case (i) if the Completion Estimates Statement is due to be delivered between the fifteenth and the thirty first day of a calendar month, as at the end of the calendar month preceding the calendar month in which the Completion Estimates Statement is due to be delivered (the “Preceding Month”); or (ii) if the Completion Estimates Statement is due to be delivered between the first and the fourteenth day of a calendar month, as at the end of the calendar month preceding the Preceding Month. Notwithstanding the provisions of sub-paragraphs (i) and (ii) above, if more recent financial data is available to the Sellers prior to the date on which the Completion Estimates Statement is due to be delivered, the parties shall work together in good faith and acting reasonably to determine whether the Completion Estimates Statement shall be provided based on the financial information as at the date set out in sub-paragraphs (i) and (ii) above or as at a later date.
3.9 Each written statement to be delivered by the Sellers under clause 3.7 or 3.8 shall be prepared in accordance with the accounting treatments set out in Part 2 of Schedule 3 and in
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the format set out in Parts C and D of Part 2 of Schedule 3 and be accompanied by copies of the relevant supporting accounts and information used to prepare such statement to the extent reasonable. For the avoidance of doubt, any Intra-group Debt existing as at the date of the written statement (or the relevant time to which the written statement relates) which is intended to be terminated and/or repaid prior to Completion, shall be treated as terminated and repaid for the purpose of each written statement to be delivered under clause 3.7 or 3.8 but without prejudice to the Parties’ remedies under this Agreement if such Intra-group Debt is not in fact terminated and/or repaid prior to Completion as intended, and provided that the Sellers shall keep the Buyer regularly updated with respect to the steps intended to be undertaken to repay and/or terminate the Intra-group Debt and the Sellers shall provide the Buyer with any relevant information which the Buyer may reasonably request and shall take into account the Buyer’s reasonable comments on such steps and associated documentation.
3.10 Immediately following Completion:
(a) the Buyer shall procure that each relevant Group Company pays to the relevant member of the Sellers’ Group an amount equal to any Estimated Intra-Group Financing Payables and shall acknowledge on behalf of each relevant Group Company the payment of the amount of Estimated Intra-Group Financing Receivables in accordance with clause 3.10(b); and
(b) the Sellers shall procure that each relevant member of the Sellers’ Group pays to the relevant Group Company an amount equal to any Estimated Intra-Group Financing Receivables and shall acknowledge on behalf of each relevant member of the Sellers’ Group the payment of the amount of Estimated Intra-Group Financing Payables in accordance with clause 3.10(a).
3.11 Post-Completion determination of the Consideration
After the Completion Date the Parties shall determine the Consideration based on the determination of the Cash Amount, the Debt Amount, the Working Capital Adjustment (if any) and the EBITDA Adjustment (if any) in accordance with Schedule 3).
3.12 Payment of any adjustment amount after Completion
No later than fifteen (15) Business Days after the Consideration has been determined in accordance with Schedule 3:
(a) if the Consideration is higher than the Initial Purchase Price, the Buyer shall pay to the Sellers the amount by which the Consideration exceeds the Initial Purchase Price; or
(b) if the Consideration is lower than the Initial Purchase Price:
(i) the Buyer shall be entitled to reduce the Escrow Amount by the amount by which the Initial Purchase Price exceeds the Consideration; and
(ii) if and to the extent that the amount of the Escrow Amount is insufficient to satisfy the reduction in clause (i) above, the Sellers shall pay or procure the payment by some or all of the Sellers (as the case may be) to the Buyer of the amount by which the Initial Purchase Price exceeds the Consideration (or, if such amount has been satisfied in part out of the Escrow Amount, the remainder of such amount),
by (a) transferring (or procuring the transfer of) such amount to the Sellers’ Solicitors Bank Account in case of a payment pursuant to clause 3.12(a), or (b) reducing the amount of the Escrow Amount in case of a deduction pursuant to 3.12(b). Any payment by the Buyer under this clause shall be made in Euros up to the amount of the Euro Proceeds (to the extent the
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Euro Proceeds have not been satisfied in full by payment of the Initial Purchase Price) and thereafter in U.S. Dollars and any payment by the Sellers shall be made in U.S. Dollars up to the amount of the Dollar Proceeds and thereafter in Euros.
3.13 Any payment by the Sellers to the Buyer or by the Buyer to the Sellers, as the case may be under this clause 3 or for any breach of this Agreement (including any breach of warranty) or under any indemnity in this Agreement including, for the avoidance of doubt, the Tax Covenant, shall be treated as an adjustment to the Consideration (to the extent legally possible) and shall be apportioned between the Shares pro rata to the respective Base Purchase Prices for the Relevant Shares (except where such adjustment is directly referable to a particular Target Company or its Subsidiary, in which case it shall be apportioned to that Target Company).
3.14 The Sellers shall comply with any provision of the Credit Agreement and the High Yield Indenture that requires the Sellers to apply the Initial Purchase Price and any adjustment to the Consideration payable to the Sellers under clause 3.12 to repay any outstanding amounts thereunder upon receipt thereof.
3.15 Following determination of the Completion Statement in accordance with Schedule 3, if the amount of any Intra-Group Financing Payable and/or any Intra-Group Financing Receivable contained in the Completion Statement is greater or less than the amount included in the Estimated Cash Amount or Estimated Debt Amount, then the Sellers and the Buyer shall procure that such adjustments to the payments pursuant to clause 3.10 are made as are necessary to ensure that (taking into account such adjustments) the actual amount of each Intra-Group Financing Payable and each Intra-Group Financing Receivable has been repaid by each relevant Group Company to the relevant member of the Sellers’ Group or by the relevant member of the Sellers’ Group to the relevant Group Company, as the case may be.
3.16 The Earn-Out Payment shall be payable by the Buyer to the Sellers subject to the terms and conditions and in accordance with the provisions set out in Schedule 24.
4. CONDITIONS
4.1 The Buyer has made a merger control analysis. Based on this analysis, the Buyer has established that the Transaction is subject to a filing with the competent authorities in each of Austria, Germany, Ireland and the United States (the “Competition Authorities”). All costs, expenses, penalties, fines and other liabilities resulting from not, or not correctly (except where the filing was defective because of incorrect information provided by the Sellers, save that the Sellers shall not be liable for any such costs where reasonable steps have been taken to prove complete and accurate information), filing in any jurisdiction where the relevant local competition authority/authorities consider that filing should have taken place shall be borne exclusively by the Buyer.
4.2 The Buyer has made a regulatory analysis. Based on this analysis, the Buyer has established that the Transaction is subject to one or more filings with the competent authorities in France, Italy, Germany, Hungary, Austria, Romania, Spain, the Netherlands, Canada and the United States (the “Regulatory Authorities”). All costs, expenses, penalties, fines and liabilities resulting from not, or not correctly (except where the filing was defective because of incorrect information provided by the Sellers, save that the Sellers shall not be liable for any such costs where reasonable steps have been taken to prove complete and accurate information), filing in any jurisdiction where the relevant local regulatory authority/authorities consider that filing should have taken place shall be borne exclusively by the Buyer. The Competition Authorities and the Regulatory Authorities shall be further referred to as the “Governmental Authorities”.
4.3 The Buyer shall not, and shall procure that no member of the Buyer’s Group shall, make any filing in relation to the Transaction with any Governmental Authority (or equivalent body) whether or not identified in clauses 4.1 and 4.2 without giving the Sellers’ Representative and
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its advisers a reasonable opportunity to provide comments as to the making of it and to its form and content. All costs and expenses associated with any such filing shall be borne solely by the Buyer.
4.4 Completion of the sale and purchase of the Shares is conditional on each of the conditions set out below being satisfied:
(a) Subject to clause 4.4(b) below, each of the Competition Authorities:
(i) notifying the parties in writing that the Transaction does not give rise to a concentration falling within the scope of the relevant competition laws; or
(ii) approving, or being deemed to approve in accordance with the relevant competition laws, the Transaction and any applicable waiting periods having expired or being terminated; or
(iii) not taking a decision within the time limits as set by the relevant competition laws, if such failure constitutes an automatic approval of the Transaction under the relevant competition laws; or
(iv) has otherwise waived the prohibition to complete the Transaction or such prohibition has been terminated; and
(b) As far as the clearance process in Austria, Germany and Ireland is concerned:
(i) in the event of a referral to the European Commission pursuant to Article 22 of the Regulation (or should it be determined that the Transaction constitutes a notifiable concentration under the Regulation):
(A) the EC approving, or being deemed to approve, the Transaction; and
(B) if a Competition Authority retains jurisdiction over any part(s) of the Transaction, such Competition Authority approving, or being deemed to approve, the Transaction under the relevant competition laws; and
(ii) as at the date when all other Conditions set out in this clause 4.4 have been satisfied or waived:
(A) the CMA's position as most recently communicated to the Buyer being that it has no further questions in respect of the Transaction or the CMA not having: (a) requested submission of a Merger Notice; (b) given notice to either party that it is commencing a Phase 1 Investigation; (c) indicated that the statutory review period in which the CMA must decide whether to make a Phase 2 Reference under section 34ZA EA02 has begun; or (d) requested information or documents under the EA02, which may indicate it is considering commencing the aforementioned review period, in each case with respect to the Transaction or any matter arising from or relating to it; or
(B) the CMA approving the Transaction under the EA02 or failing to refer the Transaction to a Phase 2 investigation within the review period set out in section 34ZA EA02,
(the conditions in 4.4(a) and 4.4(b) above being collectively referred to as the “Competition Conditions”);
(c) Each of the Regulatory Authorities:
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(i) adopting a formal decision that the Transaction does not give rise to a mandatory filing obligation within the scope of the relevant regulatory laws; or
(ii) approving, or being deemed to approve in accordance with the relevant regulatory laws, the Transaction and any applicable waiting periods having expired or being terminated; or
(iii) not taking a decision within the time limits as set by the relevant regulatory laws, if such failure constitutes an automatic approval of the Transaction under the relevant regulatory laws; or
(iv) has otherwise waived the prohibition to complete the Transaction or such prohibition has been terminated; and
(d) As at the date when all other Conditions set out in this clause 4.4 have been satisfied or waived:
(i) the UK Secretary of State not having indicated that it may or is minded to intervene pursuant Part 3 EA02 in respect of any of the arrangements contemplated in the Transaction Documents; or
(ii) in the event that the UK Secretary of State has intervened pursuant to Part 3 EA02, the UK Secretary of State indicating, on terms reasonably satisfactory to the Buyer, that it does not intend to make a Phase 2 Reference,
(the conditions in 4.4(c) and 4.4(d) above being collectively referred to as the “Regulatory Conditions”);
(e) the audited financial statements of the Principal Seller for the financial year ended 31 December 2020 (the “Principal Seller FY2020 Financial Statements”) have been prepared, are accompanied by an audit opinion, showing the InfraCo Business as “discontinued operations” in accordance with the Accounting Standards, and have been made available to the Buyer (the “Financial Statements Condition”);
(f) the occurrence of any of the following:
(i) a German Tax Insurance Policy Assignment having been completed; or
(ii) a German Tax Replacement Insurance Policy having been obtained;
(the “German Tax Condition”);
(g) In the event that any of the Sellers and/or any member(s) of the Sellers’ Group file a Chapter 11 Case prior to the Completion Date:
(i) any incremental financing that is entered into by any of the Sellers and/or any member(s) of the Sellers’ Group prior to the Completion Date in connection with such Chapter 11 Case for the purpose of financing an in-court reorganization pursuant to chapter 11 of the Bankruptcy Code (the “DIP Financing”) shall be on terms and conditions not inconsistent with this Agreement and the Acceptable RSA, the Acceptable PSA, or the Acceptable Sale Order, as applicable;
(the “DIP Condition”); and
(ii) the Sellers and/or the Sellers’ Group shall have:
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(A) filed a motion with the Bankruptcy Court no later than three (3) days following commencement of such Chapter 11 Case in a form and substance which is reasonably acceptable to the Buyer seeking entry of an Acceptable Sale Order (as defined below) (an “Acceptable Sale Motion”);
(B) obtained an order from the Bankruptcy Court no later than twenty-one (21) days following the commencement of such Chapter 11 Case (but in any event prior to the Termination Date) in a form and substance which is reasonably acceptable to the Buyer approving the payment of the Buyer’s Restructuring Expenses and the Break-Up Fee on the terms and conditions set forth in this Agreement (the “Sale Protection Order”); and
(C) obtained an order from the Bankruptcy Court prior to the later of (x) forty-five (45) days following the commencement of such Chapter 11 Case and (y) twenty (20) days following the satisfaction or waiver of all Completion Conditions other than Regulatory Conditions (but in any event prior to the Termination Date), in a form and substance which is reasonably acceptable to the Buyer (an “Acceptable Sale Order”) providing for the following:
(1) approval of the sale of the Shares to the Buyer as contemplated in this Agreement free and clear of all claims, liens, and encumbrances, as an exercise of good faith in the Sellers’ business judgment, including the requisite findings pursuant to section 363(f) and 363(m) of the Bankruptcy Code;
(2) the assumption by the Sellers and the applicable members of the Sellers’ Group of this Agreement and the Transaction Documents, including (without limitation) each of the InfraCo TSA, the InfraCo MSA, the GTT MSA and the GTT TSA, pursuant to section 365(a) of the Bankruptcy Code, provided that the Acceptable Sale Order shall reserve and preserve all rights and defences of the Buyer and the Buyer’s Group under this Agreement and the Transaction Documents, including without limitation specific performance, and nothing contained in this Agreement shall constitute a waiver of any such rights and defences;
(3) releases of the Buyer and the relevant members of the Buyer’s Group from any and all claims and causes of action relating to this Agreement and the Transaction other than claims made under the Transaction Documents against the relevant parties thereto, in the form attached hereto as Schedule 26; and
(4) effective immediately prior to the occurrence of Completion, and pursuant to section 1112 of the Bankruptcy Code, the dismissal of the Chapter 11 Cases for those Target Companies and Group Companies subject to the sale contemplated in this Agreement,
(the “Sale Condition”),
(the conditions in clauses 4.4(g)(i) and 4.4(g)(ii) being collectively referred to as the “Chapter 11 Conditions”); and
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(h) The Buyer, the relevant members of the Buyer’s Group, the Principal Seller, the relevant members of the Sellers’ Group, and the RSA Lender Parties having entered into an RSA that is effective per its terms with respect to all such parties and has not been terminated as of the Completion Date, that provides for (1) the assumption by the Sellers and the applicable members of the Sellers’ Group of this Agreement and the Transaction Documents, including (without limitation) each of the InfraCo TSA, the InfraCo MSA, the GTT MSA and the GTT TSA and the consummation of the Transactions, (2) releases of the Buyer and the relevant members of the Buyer’s Group from any and all claims and causes of action relating to this Agreement and the Transaction other than claims made under the Transaction Documents against the relevant parties thereto, in the form attached hereto as Schedule 26, and (3) the payment of the Buyer’s Restructuring Expenses and the Break-Up Fee on terms and conditions consistent with clause 4.25, in form and substance reasonably acceptable to the Buyer (the “RSA Condition,” and such RSA, an “Acceptable RSA”).
4.5 The above conditions will be referred to as the “Conditions”.
4.6 The Competition Conditions and the Regulatory Conditions
(a) The Buyer (subject to clauses 4.11(b) and 4.12), and the Sellers in relation to filings where joint or parallel submissions are required, shall use their best efforts to procure that the Competition Conditions and the Regulatory Conditions are satisfied as soon as practicable. Without prejudice to clause 4.7, the Buyer (and the Sellers, as applicable) shall:
(i) as soon as practicable make all customary and appropriate submissions, notifications or filings required to obtain the satisfaction of the relevant Governmental Authorities or, if agreed between the parties in writing as the appropriate means to progress with a particular Governmental Authority, informally engage with the relevant Governmental Authorities within the timeframe set out in this clause 4.6(a)(i) and provide all customary and appropriate supporting details;
(ii) promptly provide all information and assistance which is requested or required by any Governmental Authorities;
(iii) promptly (but in any case within one (1) Business Day) notify the Sellers’ (or, as the case may be, the Buyer’s) Representative (and promptly provide copies or, in the case of non-written communications details including where appropriate external counsel only and non-confidential versions) of any material communications with or from the Governmental Authorities relating to any relevant filings, consents, processes, clearances or actions;
(iv) communicate with any of the Governmental Authorities on material issues only after prior consultation with the Sellers’ Representative or its advisers (and taking into account any reasonable comments and requests of the Sellers and their advisers) and provide the Sellers’ (or, as the case may be, the Buyer’s) Representative and its advisers with copies of all such submissions, notifications, filings and other communications in the form submitted or sent (or, as the case may be separate external counsel only and non-confidential versions);
(v) (without limiting (iv) above) provide the Sellers’ (or, as the case may be, the Buyer’s) Representative and its advisers with drafts (including separate external counsel only and non-confidential versions as appropriate) of all submissions, notifications, filings and other communications to any Governmental Authorities promptly and at such time as will allow the Sellers’ (or, as the case may be, the Buyer’s) Representative and its advisers
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a reasonable opportunity to provide comments and for the Buyer to take account of any reasonable comments of the Sellers’ (or, as the case may be, the Buyer’s) Representative and its advisers on such drafts prior to their submission;
(vi) where permitted by the relevant Governmental Authority, allow persons nominated by the Sellers’ (or, as the case may be, the Buyer’s) Representative and its advisers to attend all meetings and hearings, and participate in all material telephone or other conversations with such Governmental Authority and to make oral submissions at the meetings or in telephone or other conversations;
(vii) regularly review with the Sellers’ (or, as the case may be, the Buyer’s Representative or its advisers) the progress of any communications, notifications or filings (including, where necessary, seeking to identify appropriate conditions and/or commitments or similar measures to address any concerns identified by any Governmental Authorities) and discuss with the Sellers’ (or, as the case may be, the Buyer’s) Representative the scope, timing and tactics of any such conditions and/or commitments or similar measures with a view to obtaining the relevant clearance, consent, approval or action from any Governmental Authorities at the earliest reasonable opportunity; and
(viii) not extend any applicable waiting or review periods or enter into any agreement with any Governmental Authority to delay or not to consummate the transactions contemplated hereby to be consummated on the Completion Date, except with the prior written consent of the Sellers’ (or, as the case may be, the Buyer’s) Representative.
4.7 The Sellers shall:
(a) use reasonable endeavours to procure that the Financial Statements Condition satisfied as soon as reasonably practicable and in any event prior to the Termination Date, and shall bear all the costs and expenses incurred in connection with the satisfaction of the Financial Statements Condition;
(b) promptly facilitate, and shall procure that the relevant members of the Sellers’ Group shall promptly facilitate, the Buyer having regular and ongoing access in real time to the discussions arising from or related to the Chapter 11 Conditions and/or the RSA Condition, including without limitation using commercially reasonable efforts to (1) facilitate the Buyer’s reasonable access to (a) the ad hoc group of lenders under the Credit Agreement and (b) the ad hoc group of holders of bonds under the High Yield Indenture, and (2) promptly provide the Buyer with copies of all material circulated drafts and any material supporting documentation related to the Chapter 11 Conditions and/or the RSA Condition in the possession of any member of the Sellers’ Group, which shall consist of (x) any RSA, plan support agreement, DIP Financing document, sale protection order, sale order, plan, disclosure statement, or plan supplement, (y) any motion to authorize or approve any of the foregoing, and (z) any additional documents upon reasonable request by the Buyer (in the case of this clause (z), taking into account commercial sensitivies, confidentiality obligations and legal privilege);
(c) use all reasonable efforts to ensure that the RSA Condition is satisfied as soon as reasonably practicable and in any event prior to the Termination Date (unless duly waived in accordance with this Agreement);
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(d) in the event that any of the Sellers or member(s) the Sellers’ Group enter into an Acceptable PSA, use all reasonable efforts to include the Buyer and the Buyer’s Group as parties thereto; and
(e) in the event that any of the Sellers and/or any member(s) of the Sellers’ Group file a Chapter 11 Case prior to the Completion Date, use all reasonable efforts to ensure that the Chapter 11 Conditions are satisfied as soon as reasonably practicable and in any event in accordance with the deadlines imposed in clause 4.4(g) of this Agreement.
4.8 The Sellers (or, as the case may be, the Buyer) shall, and shall procure that their advisers shall, promptly furnish to the Buyer (or, as the case may be, the Sellers) such necessary information and reasonable assistance as the Buyer (or, as the case may be, the Sellers) may request in connection with the satisfaction of the Conditions.
4.9 The Sellers shall promptly (but in any case within one (1) Business Day) notify the Buyer (and promptly provide non-confidential copies or, in the case of non-written communications non-confidential details) of any material communications with or from the Governmental Authorities relating to any relevant filings, consents, processes, clearances or actions.
4.10 The Sellers shall notify the Buyer promptly upon becoming aware that circumstances have arisen that could result in any of the Conditions not being satisfied prior to the Termination Date (as defined below) together with such details of the relevant circumstances as are in the Sellers’ possession at the relevant time.
4.11 The Buyer shall:
(a) not take any action or engage in any transaction which is reasonably likely to: (i) worsen its position in respect of obtaining the approval of the relevant Governmental Authority or (ii) cause any delays in obtaining the approval of the Governmental Authority;
(b) not: (i) acquire or offer to acquire or invest in (or cause another person acting on its behalf to acquire or invest in or offer to acquire or invest in); or (ii) execute definitive transaction documentation (or cause another person acting on its behalf to execute definitive transaction documentation) that, if carried into effect, would result in the acquisition of or investment in any business the acquisition or investment in which might reasonably be expected to prejudice the satisfaction of any of the Competition Conditions or the Regulatory Conditions;
(c) ensure that no information is made public that materially deviates from the information set out in the submissions, notifications and/or filing(s) to be made or is likely to worsen the chances of obtaining approval from the Governmental Authority;
(d) answer any questions raised and handle any request made by any relevant Governmental Authority and use its best efforts to obtain the approval of such Governmental Authority as soon as practicable; and
(e) accept all conditions, obligations or other requirements, solely in relation to the InfraCo Business and/or the InfraCo Assets imposed or contained in any decision by any relevant Governmental Authority and offer such conditions and undertakings as may be required to obtain the required approval or approvals as soon as practicable, including but not limited to restructure, or dispose of the necessary activities of the InfraCo Business to satisfy such conditions, obligations or other requirements. For the avoidance of doubt, neither the Buyer nor any member of the Buyer’s Group shall be required to offer conditions, undertakings and/or commitments or similar measures in relation to their own business or assets. However, to the extent that any conditions, obligations or other requirements, proposed, imposed or contained in any decision or
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communication from any relevant Governmental Authority relate to the Buyer or the Buyer’s Group’s own business, the Buyer shall be obliged to discuss and propose alternative conditions, undertakings and/or commitments or similar measures to the relevant Government Authority in relation to the InfraCo Business (and which do not relate to the Buyer or the Buyer’s Group’s own business or assets).
4.12 The Buyer may waive in whole or part (a) the Regulatory Conditions in respect of the filings with the competent authorities in Austria and/or Spain; (b) the German Tax Condition, (c) the Financial Statements Condition, (d) one or more of the Chapter 11 Conditions or the RSA Condition (and where the Buyer waives a Condition under this clause, that Condition shall be deemed satisfied for the purposes of this Agreement). For the avoidance of doubt, (x) if the RSA Condition is satisfied, the Chapter 11 Conditions shall be automatically waived for all purposes of this Agreement and (y) if an Acceptable Sale Motion is filed with the Bankruptcy Court within the time period required by clause 4.4(g)(ii)(A), the RSA Condition and the obligation in clause 4.7(c) shall be automatically waived for all purposes of this Agreement.
4.13 If it becomes reasonably apparent to the Buyer (who shall inform the Sellers’ Representative of this fact together with any other relevant details) or to any Seller (who shall inform the Buyer and the other Sellers of this fact together with any other relevant details) that any Governmental Authority will only clear, consent to or approve the Transaction subject to any conditions, undertakings and/or commitments or similar measures, the Buyer or any member of the Buyer’s Group shall offer sufficient conditions, undertakings and/or commitments or similar measures, solely in relation to the InfraCo Business and/or to the InfraCo Assets, to the relevant Governmental Authority to obtain clearance, consent or approval. For the avoidance of doubt, the Buyer or any member of the Buyer’s Group shall not be required to offer conditions, undertakings and/or commitments or similar measures in relation to their own business or assets.
4.14 For the avoidance of doubt, the Buyer’s compliance with any condition, obligation or other requirement imposed or contained in any decision by the Governmental Authority, or the effectuation of any offer made by the Buyer to the Governmental Authority pursuant to clauses 4.11 will not result in any change to the terms and conditions of this Agreement (including, without limitation, the Consideration) and any costs incurred in relation thereto shall be borne solely by the Buyer.
4.15 The Buyer shall notify the Sellers’ Representative or its advisers promptly (but in any event within two (2) Business Days) upon becoming aware that:
(a) circumstances have arisen that could result in any of the Competition Conditions or the Regulatory Conditions not being satisfied prior to the Termination Date (as defined below) together with such details of the relevant circumstances as are in the Buyer’s possession at the relevant time; or
(b) any of the Competition Conditions or the Regulatory Conditions has been fulfilled.
4.16 The Buyer shall bear all the costs and expenses incurred in connection with the filing contemplated by clause 4.6(a)(i) and the satisfaction of the Competition Condition and the Regulatory Conditions.
US Regulatory Approval
4.17 In the event that the consent of the Federal Communications Commission pursuant to the Communications Act of 1934, as amended, and the Cable Landing License Act of 1921 or clearance by the Committee on Foreign Investment in the United States pursuant to Section 721 of the Defense Production Act of 1950, as amended, is reasonably likely to be materially delayed, the parties shall work together in good faith to proceed to Completion with respect to the InfraCo Non-US Group Companies as soon as reasonably practicable, including without limitation considering whether the completion and transfer of the InfraCo Non-US Group
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Companies can be effected promptly (but subject always to the provisions of clauses 4 to 7) and in advance of the completion and transfer of the InfraCo US Group Company. For the avoidance of doubt, nothing in this clause 4.17 shall release the Sellers from their obligation to sell and the Buyer from its obligation to purchase the InfraCo US Group Company, subject to the wider provisions of this clause 4.
Spanish Regulatory Approval
4.18 In the event that the consent of the Council of Ministers or (if applicable) the General Directorate for International Trade and Investment pursuant to Article 7(bis) of Law 19/2003 of 4 July on the legal regime of capital movements and economic transactions abroad and on certain measures to prevent money laundering (“Spanish Regulatory Approval”) is reasonably likely to be materially delayed, the parties shall work together in good faith to proceed to Completion with respect to those Group Companies that can be transferred to the Buyer without the Spanish Regulatory Approval (the “InfraCo Non-Spanish Group Companies”) as soon as reasonably practicable, including without limitation considering whether the completion and transfer of the InfraCo Non-Spanish Group Companies can be effected promptly (but subject always to the provisions of clauses 4 to 7) and in advance of the completion and transfer of the remaining Group Companies. For the avoidance of doubt, nothing in this clause 4.18 shall release the Sellers from their obligation to sell and the Buyer from its obligation to purchase the Group Companies to which the Spanish Regulatory Approval relates, subject to the wider provisions of this clause 4.
German Tax Condition
4.19 The Sellers shall either:
(a) procure that (i) all of the rights, title and interest of the existing policy holder under each of the German Tax Insurance Policies is validly and effectively assigned to such Group Company as the Buyer may validly elect under the terms of such policy, such that the relevant Group Company will have the full benefit of the German Tax Insurance Policies at and from Completion, (ii) written consent to such assignment has been obtained from each relevant insurer (whether or not required in connection the assignment) and (iii) legally binding written confirmation has been obtained from each relevant insurer that a valid and subsisting claim has been commenced under each relevant German Tax Insurance Policy within the relevant policy period (collectively a “German Tax Insurance Policy Assignment”). The Sellers shall be responsible for all costs and expenses in connection with such German Tax Insurance Policy Assignment; or
(b) procure that an insurance policy is obtained in the name and for the benefit of such Group Company as the Buyer may validly elect, on terms substantively equivalent to the terms of the German Tax Insurance Policies (including as to the scope of coverage of insured losses) and with a limit of liability of not less than EUR 90 million and otherwise on terms acceptable to the Buyer (acting reasonably) (a “German Tax Replacement Insurance Policy”). The Sellers shall be responsible for all costs and expenses in connection with such German Tax Replacement Insurance Policy; or
(c) elect for the Buyer to withhold an amount equal to EUR90 million (the “German Tax Cash Collateralisation Amount”) from the Initial Purchase Price (a “German Tax Cash Collateralisation”).
4.20 Where the Sellers have elected to make a German Tax Cash Collateralisation, on each occasion on which the Buyer brings a successful Tax Covenant Claim against the Sellers pursuant to which the Sellers are or become liable under paragraph 2.3(a) of the Tax Covenant, the German Tax Cash Collateralisation Amount shall be reduced by an amount equal to the amount for which the Sellers are or become so liable and the obligations of the Sellers to make a payment to the Buyer pursuant to the Tax Covenant shall not apply to the
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extent the amounts so payable do not exceed the German Tax Cash Collateralisation Amount (immediately prior to the reduction).
4.21 If and to the extent not already called upon pursuant to clause 4.20, the German Tax Cash Collateralisation Amount (as may have been reduced from time to time in accordance with clause 4.20) shall become payable to the Principal Seller on the earlier of: (a) the date falling six months after the date of issuance and formal notification of a Finally Determined Tax Assessment or Final Tax Court Decision from which it can be derived that the Group Companies shall not be liable for any Taxation in respect of the Phoenix/Xxxx Matter; and (b) ten (10) Business Days after the date of expiry of the statutory limitation period in respect of the potential claims for all liabilities in respect of Tax in respect of the Phoenix/Xxxx Matter. For the purposes of this clause 4.21, “Final Tax Court Decision” means a final non-appealable judgment of a German fiscal court; and “Finally Determined Tax Assessment” means a final non-appealable and binding Tax assessment which can no longer be amended.
4.22 The Principal Seller shall provide regular updates to the Buyer in respect of progress towards satisfaction of the German Tax Condition.
Termination in the event of non-fulfilment
4.23 The Conditions shall be satisfied as soon as practicable but in any event on or before the date falling twelve (12) calendar months after the date of this Agreement (the “Termination Date”), provided that the Buyer may unilaterally elect, by Notice to the Sellers prior to the expiry of the Termination Date, to extend the Termination Date in the event that all of the Conditions other than the Financial Statements Condition have been satisfied to such date as the Buyer determines in its sole discretion to allow the Financial Statements Condition to be satisfied (and where the Buyer so elects, the new date proposed by the Buyer shall thereafter be the Termination Date for the purposes of this Agreement). The Buyer may extend the Termination Date more than once under this clause but in no circumstances shall the Termination Date be a date falling more than fourteen (14) calendar months from the date of this Agreement.
4.24 Subject to any agreement in writing between the parties to the contrary pursuant to clause 4.17, clause 4.18 or otherwise, this Agreement shall automatically terminate:
(a) if the Conditions are not all satisfied on or before the Termination Date; or
(b) if the Completion has not occurred prior to the Long Stop Date,
in each case, unless (i) the Sellers’ Representative and the Buyer have agreed otherwise in writing prior to any such date or (ii), in the case of (b), the Buyer has elected to extend the Termination Date in accordance with clause 4.23.
Break-Up Fee
4.25
(a) If this Agreement is terminated for any reason other than a breach by Buyer of any of its material obligations under this Agreement, the Sellers shall pay the Buyer’s Restructuring Expenses to the Buyer within five (5) Business Days of the Buyer providing to the Principal Seller documentation supporting the amount of the Buyer’s Restructuring Expenses; provided further that in the event that any of the Sellers or any member(s) of the Sellers’ Group commence a Chapter 11 Case prior to any such termination of this Agreement, the Sellers’ obligations under this clause 4.25(a) shall be subject to Bankruptcy Court approval.
(b) If this Agreement is terminated pursuant to clauses 5.1(h) (however, only to the extent that the default referred to in this clause amounts to a material breach by any Seller of any of its obligations under clause 6.2, Schedule 11, Schedule 13, Schedule 16
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and Schedule 17), 5.5(a), 5.5(b), 5.5(c) (but only to the extent that the Sellers have not used all reasonable efforts to satisfy the Sale Condition) or 5.5(d), the Sellers agree that they shall be liable to the Buyer for the full amount of the Break-Up Fee immediately as of such termination, provided that payment of the Break-Up Fee by the Sellers shall be deferred until five (5) Business Days following the earlier of the consummation of: (x) a sale of the Shares to a third party purchaser (other than the Buyer or any Affiliate of the Buyer), (y) a sale of all or substantially all of the assets for the Target Companies to a third party purchaser (other than the Buyer or any Affiliate of the Buyer) or (z) a plan of reorganization pursuant to chapter 11 of the Bankruptcy Code with respect to the Sellers and/or the member(s) of the Sellers’ Group for which Chapter 11 Cases have been commenced; provided further that in the event that this Agreement is terminated (i) pursuant to clause 5.5(c) and the Break Up Fee is not payable in connection with such termination or (ii) pursuant to clause 4.24 and as of the date of such termination the RSA Condition has not been satisfied and the Sellers and/or any member(s) of the Sellers’ Group have not commenced Chapter 11 Cases, the Buyer shall be entitled to the Break Up Fee pursuant to this clause 4.25(b) if the Sellers and/or member(s) of the Sellers’ Group (1) enter into any alternative transaction pursuant to which the Shares and/or substantially all of the assets of the Target Companies are owned, directly or indirectly, by a third party (other than the Buyer or any Affiliate of the Buyer), including without limitation a transaction or reorganization described in clauses 4.25(b)(x), 4.25(b)(y) or 4.25(b)(z), for consideration with respect to the Shares and/or the assets of the Target Companies that is of equal or greater value than the Aggregate Base Purchase Price and such alternative transaction is entered into within eighteen (18) months following the termination of this Agreement and is subsequently consummated, with the payment of the Break-Up Fee by the Sellers deferred until five (5) business days after such consummation or (2) enter into a binding sale agreement with respect to a credit bid that includes the Shares and/or substantially all of the assets of the Target Companies within eighteen (18) months following the termination of this Agreement and such credit bid transaction is subsequently consummated, with the payment of the Break-Up Fee by the Sellers deferred until five (5) business days after such consummation; provided further that in the event the Sellers or any member(s) of the Sellers’ Group commence a Chapter 11 Case prior to any such termination of this Agreement, the Sellers’ obligations under this clause 4.25(b) shall be subject to Bankruptcy Court approval. For the avoidance of doubt, the consummation of a sale pursuant to a credit bid under Bankruptcy Code section 363(k) shall constitute a sale for purposes of this clause 4.25(b);
(c) To the extent applicable, the Buyer’s right to payment of the BreakUp Fee and/or the Buyer’s right to payment of the Buyer’s Restructuring Expenses by the Sellers pursuant to this clause 4.25 shall constitute administrative expenses in any Chapter 11 Cases pursuant to Section 503(b) or 507(a)(2) of the Bankruptcy Code with priority over any and all administrative expenses of a kind specified in sections 503(b) and 507(a) of the Bankruptcy Code, but junior in priority to any super priority administrative expense claims granted in connection with any order approving the use of cash collateral and/or DIP Financing, and senior to all other administrative expenses in such Chapter 11 Cases; and
(d) In the event that the Break-Up Fee and/or the Buyer’s Restructuring Expenses become due and payable by the Sellers pursuant to the terms of this clause 4.25, the Sellers shall pay to the Buyer the Break-Up Fee and/or (as applicable) the Buyer’s Restructuring Expenses, by wire transfer of immediately available funds; provided, however, that under no circumstances shall the Sellers be obligated to pay the Break-Up Fee or the Buyer’s Restructuring Expenses more than once. Notwithstanding anything herein, but subject to the terms of any Acceptable Sale Order, upon payment by the Sellers of (1) in the case of clause 4.25(a) of this Agreement, the Buyer’s Restructuring Expenses, and/or (2) in the case of clause 4.25(b) of this Agreement, the Break-Up Fee, the Buyer shall be precluded from pursuing any other remedy
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against the Sellers and any member of the Sellers’ Group arising out of the termination of this Agreement, the Transaction or (as applicable) the commencement of the relevant Chapter 11 Case, at law or in equity or otherwise, provided that the payment of the Buyer’s Restructuring Expenses shall not preclude recovery pursuant to clause 4.25(b) of this Agreement, and payment of a Break-Up Fee shall not preclude recovery pursuant to clause 4.25(a) of this Agreement. The Buyer shall not otherwise seek to otherwise obtain any recovery, judgment, or damages of any kind against the Sellers or any member of the Sellers’ Group arising out of the termination of this Agreement, the Transaction or (as applicable) the commencement of the relevant Chapter 11 Case. Having taken appropriate advice, the parties agree that the Break-Up Fee constitutes a fair and reasonable amount payable by the Sellers in the event that this Agreement is terminated pursuant to clauses 5.1(h), 5.5(a), 5.5(b), 5.5(c), or 5.5(d), being a genuine pre-estimate of the losses that the Buyer will suffer in that event (such losses being likely to include, but not be limited to, the incurrence of substantial costs and expenses, lost opportunity, reputational harm and/or adverse market reaction). The parties further irrevocably agree that the obligation to pay the Break-Up Fee (insofar as it arises) is a primary and not a secondary obligation falling upon the Sellers.
5. TERMINATION
Termination at Buyer’s election on the occurrence of certain events
5.1 The Buyer may resolve (in its sole discretion) to terminate this Agreement by giving Notice thereof to the Sellers if any of the following has occurred (each a “Termination Event”):
(a) a MAC Event has occurred;
(b) [not used];
(c) [not used];
(d) [not used];
(e) a court of competent authority has issued a judgment to prohibit, enjoin, injunct, challenge or restrain the consummation of the Transaction and such judgment has not been vacated or reversed within thirty (30) Business Days;
(f) the KPMG VDD Reports have not been delivered to the Buyer prior to the KPMG VDD Reports Deadline; or
(g) the KPMG VDD Reports have been delivered to the Buyer prior to the KPMG VDD Reports Deadline but any of the following applies:
(i) (i) the KPMG VDD Reports do not reflect only non-cash changes and impacts as compared to the Original KPMG VDD Reports or (ii) the updates made to the Original KPMG VDD Reports do not relate solely to a review of the COR;
(ii) the KPMG VDD Reports reflect a decrease in the InfraCo EBITDA of more than 5% as compared to the InfraCo EBITDA for the period commencing 1 January 2019 and ending 31 December 2019 and contained in the Information Memorandum; and
(iii) KPMG is not willing to allow the Buyer and its and the Buyer’s Group’s lenders to rely on the KPMG VDD Reports;
(h) any Seller makes a deliberate and intentional default in performing or observing any of its material obligations under this Agreement (and such default is subsisting and, if
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capable of remedy, is not remedied to the satisfaction of the Buyer (acting reasonably) within five (5) Business Days and unless any such obligations are subject to Bankruptcy Court approval in the event that any Seller or member of the Sellers’ Group commences a Chapter 11 Case prior to the Completion and such approval has been sought but not yet obtained), and for this purpose the Sellers’ material obligations are its obligations under clause 6.2, Schedule 11, Schedule 13, Schedule 16 and Schedule 17; or
(i) any Seller is or becomes prohibited by law from performing its obligations under this Agreement (including its obligations at Completion),
in each case:
(i) within fifteen (15) Business Days after the date on which the Buyer has become aware of the occurrence of the Termination Event (including following receipt of any Notice thereof from the Sellers) (in the case of (a), (e), (h) and (i) above; or
(ii) within twenty-one (21) Business Days after the KPMG VDD Reports Deadline (in the case of (f) and (g) above).
5.2 [not used]
5.3 Notice of termination of this Agreement under clause 5.1 may be given by the Buyer to the Sellers by email to the address given in clause 29.1 and such Notice by email shall be deemed to have been served at the time of transmission from or on behalf of the Buyer (irrespective of what time of day it is transmitted) and it shall not be necessary for a copy of such notice also to be delivered in any other form or by any other method. A Notice delivered under and in accordance with this clause shall be considered valid Notice of termination, clause 29.2 shall not apply to such Notice, and in the event of any inconsistency this clause shall prevail over clause 29.
Termination at Buyer’s election upon a Reorganisation Default Event
5.4 The Buyer may resolve (in its sole discretion) to terminate this Agreement by giving Notice thereof to the Sellers if any of the following occurs (each a “Reorganisation Default Event”):
(a) if and only to the extent that the Reorganisation or the Transaction would constitute (or would, with the expiry of any grace period, giving of notice and/or making of any determination, constitute) an “event of default” or similar event under the Existing Debt Facilities or any documents related to any Capital Markets Debt without such consent, all Lender Consents have not been obtained prior to 31 December 2020; or
(b) if the Reorganisation Completion Obligation, pursuant to the provisions of clause 7.6, has not been satisfied prior to the Termination Date (disregarding for this purpose any Immaterial Reorganisation Default),
in each case, within fifteen (15) Business Days after:
(i) the date stated in (a) above (in the case of (a) above); or
(ii) the Termination Date (in the case of (b) above).
Automatic termination upon Seller Default
5.5 This Agreement will automatically terminate upon the occurrence of a Seller Default. For the purposes of this clause, a “Seller Default” occurs if:
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(a) an event of default has occurred under the Credit Agreement (including without limitation the revolving credit facility under the Credit Agreement) or the High Yield Indenture and the Principal Seller receives notice of such event of default; provided, that this Agreement shall not automatically terminate under this clause 5.5(a) if (w) in the case of such event of default under the Credit Agreement, the Required Lenders, including the Required Revolving Lenders (each as defined in the Credit Agreement (or equivalent term in any Successor Agreement, to the extent required by such Successor Agreement)) (1) have agreed to waive the applicable event of default, or (2) (i) have agreed to forbear from exercising remedies under the Credit Agreement (or any Successor Agreement, to the extent required by such Successor Agreement), as a result of such event of default thereunder (including any waiver, amendment or other modification that has the effect of curing any such event of default) within five (5) Business Days of the Principal Seller receiving notice of such event of default and, to the extent applicable, such waiver or forbearance has not expired or terminated or (ii) if no such forbearance is in effect, have not taken any affirmative action to exercise remedies under the Credit Agreement (or any Successor Agreement, to the extent required by such Successor Agreement), (x) in the case of an event of default under the High Yield Indenture, the requisite beneficial owners of notes under the High Yield Indenture (or any Successor Agreement, to the extent required by such Successor Agreement) (1) have agreed to waive the applicable event of default or (2) (i) have agreed to forbear from exercising remedies under the High Yield Indenture (or any Successor Agreement, to the extent required by such Successor Agreement) as a result of such event of default thereunder (including any waiver, amendment or other modification that has the effect of curing any such event of default) within five (5) Business Days of the Principal Seller receiving notice of such event of default and, to the extent applicable, such waiver or forbearance has not expired or terminated or (ii) if no such forbearance is in effect, have not taken any affirmative action to exercise remedies under the High Yield Indenture (or any Successor Agreement, to the extent required by such Successor Agreement); provided that acceleration of indebtedness under the High Yield Indenture will not result in a Seller Default under this clause 5.5(a), (y) the Sellers or any members of the Sellers’ Group commence a Chapter 11 Case during the five (5) Business Day period after the Principal Seller receives notice of the applicable event of default under the Credit Agreement or the High Yield Indenture or (z) such event of default arises solely in connection with the pursuit or satisfaction of the Transaction, including the RSA Condition or Sale Condition, or arises as a result of the commencement of a Chapter 11 Case;
(b) any Seller and/or member of the Sellers’ Group enters into an RSA other than an Acceptable RSA, an Acceptable PSA or any RSA to which the Buyer or a member of the Buyers’ Group is a party;
(c) any of the Sellers and/or any member(s) of the Sellers’ Group file a Chapter 11 Case, the Sale Condition is not satisfied (to the extent not waived pursuant to the terms of this Agreement) and the Buyer has not extended the deadline by which:
(i) the Seller or a member of the Sellers’ Group must file the Acceptable Sale Motion in the Chapter 11 Cases;
(ii) the Bankruptcy Court must enter the Sale Protection Order; or
(iii) the Bankruptcy Court must enter the Acceptable Sale Order,
in each instance as set forth in clause 4.4(g)(ii) of this Agreement, provided that in the event the Sellers provide the Buyer with reasonable evidence in writing that they continue to spend all reasonable efforts to achieve expeditious satisfaction of the deadlines set forth in the Sale Condition, the Buyer shall not unreasonably withhold its consent to a written request by the Principal Seller for a ten (10) Business Day extension of a deadline set forth in clause 4.4(g)(ii), and any such further ten (10)
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Business Day extensions shall require additional written evidence to be provided by Sellers of the same provided in all cases that no extension of a deadline set forth in 4.4(g)(ii) shall be granted if such deadline would fall on a date following the Termination Date; or
(d) an Acceptable RSA terminates with respect to the Buyer pursuant to the terms of such Acceptable RSA (other than as a result of a breach of the applicable Acceptable RSA by the Buyer); provided, that this clause 5.5(d) shall not apply in the event that (i) the Bankruptcy Court has entered an Acceptable Sale Order prior to any such termination or (ii) the Sellers are using all reasonable efforts to satisfy the Sale Condition at the time of any such termination,
in each case unless waived in writing by the Buyer (in its discretion) within five (5) Business Days following the occurrence of such Seller Default.
Sellers to notify Buyer of termination
5.6 The Sellers shall give Notice to the Buyer that a Termination Event, Reorganisation Default Event or Seller Default has occurred as soon as reasonably practicable and in any event no later than two (2) Business Days following the occurrence of such event or becoming aware of such event.
6. PRE-COMPLETION OBLIGATIONS
Pre-Completion Conduct of Business
6.1 From the date of this Agreement until Completion, the Sellers shall comply with the obligations set out in Schedule 9.
Separation Schedules and Reorganisation
6.2 From the date of this Agreement (including after Completion, where applicable), the provisions of the Separation Schedules and Schedule 18 shall apply. The Sellers shall use their reasonable endeavours to procure that the Reorganisation is completed prior to Completion (or, if (a) clause 7.13 applies, or (b) an Immaterial Reorganisation Default has occurred and Completion has taken place pursuant to clause 7.6, as soon as reasonably practicable after Completion) in accordance with the Separation Steps Plans and the provisions of the Separation Schedules. The Sellers shall promptly (and acting in good faith) give Notice to the Buyer upon completion of the implementation of the Reorganisation and provide all documentation and information reasonably requested by the Buyer to enable the Buyer (acting reasonably) to be satisfied that the Reorganisation Completion Obligation has been satisfied.
Information and access
6.3 From the date of this Agreement until Completion, subject to applicable law and the Separation Schedules, the Sellers shall, taking into account commercial sensitivities, confidentiality obligations and legal privilege and, in each case, at the Buyer’s sole expense (provided that the Buyer shall not be responsible for the internal costs of the Sellers’ Group), use reasonable endeavours to procure that:
(a) to the extent reasonably necessary to facilitate the Transaction (including in connection with the procurement of any W&I Policy or the Xxxx Matter Insurance Policy), the Reorganisation or the operation of the InfraCo Business after Completion, the Buyer and its Representatives are given reasonable access to the Senior Management Team (excluding for this purpose Xxxxxx Xxxx) and such other persons as may be reasonably required and to the statutory and/or formalised books and
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records of each of the Group Companies during normal business hours on any Business Day and upon reasonable notice;
(b) the Buyer and their Representatives are given (i) updates every two weeks (to be prepared and provided by Akin Gump on behalf of the Sellers) as to the progress and outcomes of the ongoing audit and investigation in relation to the delay in the filing of the Principal Seller’s Q2 Report being carried out by the Principal Seller and its professional advisors (the “Q2 Audit”) and (ii) reasonable access to the Principal Seller’s Group Chief Financial Officer and its professional advisors (including Akin Gump and Ankura) in relation to the Q2 Audit; and
(c) the Buyer is provided, as soon as reasonably practicable, such information regarding (i) the written statements provided by the Sellers under clauses 3.7 and 3.8 and as may be reasonably requested by the Buyer to verify if the statements or are correct, and (ii) the Q2 Audit as may be reasonably requested by the Buyer; and
(d) the Buyer is reasonably informed of any material discussions that take place between a member of the Sellers’ Group and (i) a counterparty to the Existing Debt Facilities or its advisers or (ii) any other material creditor of the Sellers’ Group or its advisers, from time to time,
in each case provided that (i) the Sellers and the Group Companies shall not be required to take any action that would be reasonably likely to disrupt in any material respect the conduct and/or operations of the InfraCo Business, (ii) all access shall be arranged by such persons as may be designated from time to time by the Sellers and the Buyer; (iii) the Buyer shall not (and shall procure that none of its representatives shall) contact any officer, employee, representative, customer, supplier or other material business relation of the InfraCo Business in connection with this Agreement without the prior written consent of the Sellers and (iv) the Sellers shall be entitled to exclude or redact any confidential information contained in the books and records that does not relate exclusively to the InfraCo Business.
Filings and rectification
6.4 Subject to clause 6.5, as soon as reasonably practicable after the date of this Agreement and in any event prior to Completion, the Sellers shall use all reasonable endeavours to, at their own expense, procure that:
(a) the Identified Employee is not a director, manager or officer of any Group Company;
(b) the filings and rectification actions set out in Schedule 21; and
(c) such other filings and rectification actions material in the context of the Transaction and agreed in writing by the parties acting reasonably between the date of this Agreement and Completion,
are made or taken by the relevant Group Company prior to Completion and provide evidence thereof to the Buyer as soon as reasonably practicable thereafter.
6.5 In accordance with clause 6.4, the Sellers shall use all reasonable endeavours to procure that each of the filings and rectification actions set out in Schedule 21 are made or taken by the relevant Group Company prior to Completion but, notwithstanding this obligation, the parties acknowledge and agree that it may not be practicable for those filings and rectification actions set out in Schedule 21 and categorised as Delayed Filings (the “Delayed Filings”) to be completed prior to Completion. In the event the Sellers, using all reasonable endeavours, cannot complete the Delayed Filings prior to Completion, the Sellers shall: (i) provide an update to the Buyer of the current status of the Delayed Filings at least two (2) Business Days prior to Completion; (ii) provide cooperation, assistance and information as may be reasonably required by the Buyer to complete the Delayed Filings as soon as reasonably
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practicable following Completion and (iii) indemnify and hold harmless the Buyer and/or the relevant Group Company (as applicable) against any Losses incurred by the Buyer and/or the relevant Group Company (as applicable) as a result of or in connection with the Delayed Filings (including any failure to make the Delayed Filings prior to any applicable deadline).
Undertakings in respect of existing financing arrangements
6.6 If and only to the extent that the Reorganisation or the Transaction would constitute (or would, with the expiry of any grace period, giving of notice and/or making of any determination, constitute) an “event of default” or similar event under any of the Existing Debt Facilities or any Capital Markets Debt without such consent, the Sellers shall, prior to commencing implementation of the Reorganisation, obtain consent to the Reorganisation and/or the Transaction by the requisite number of lenders or creditors under such Existing Debt Facility or any Capital Markets Debt (each, a “Lender Consent”) in writing and provide a copy to the Buyer promptly following receipt thereof. Prior to commencing implementation of the Reorganisation, the Sellers shall determine (acting reasonably and in good faith) whether any Lender Consent is required and give Notice to the Buyer of their determination together with all information and documentation necessary to allow the Buyer to evaluate such determination. In the event that the Sellers determine that any such Lender Consent is required, they shall provide updates to the Buyer on any material development in the process for obtaining such Lender Consent.
6.7 Subject to clause 6.8 below:
(a) the Sellers shall procure that, on or prior to the Completion Date, each Group Company is Discharged from all Financial Indebtedness, any Guarantees and any Encumbrances (including any Existing Financial Indebtedness, Capital Markets Debt and InfraCo Security, and all Outstanding Seller Guarantees and Encumbrances are Discharged (and any related Financing Costs)); and
(b) (without prejudice to the other remedies available to the Buyer) the Sellers shall indemnify the Buyer and the relevant members of the Buyer’s Group (including the Group Companies) against any and all Liabilities, Losses, costs, expenses and/or demands (including any Financing Costs) arising under or in connection with any Financial Indebtedness, any Guarantees and any Encumbrances (including any Existing Financial Indebtedness, Capital Markets Debt; InfraCo Security and Outstanding Seller Guarantees and Encumbrances), (and any related Financing Costs)) which are not irrevocably Discharged on or prior to Completion.
6.8 Clause 6.7 above shall not apply to the following:
(a) any liabilities of a Group Company specifically agreed not to be Discharged under clause 6.7 by the Separation Committee;
(b) RemainCo Security (which shall be Discharged or replaced in accordance with clause 10) and the Target Security (which shall be permitted or Discharged in accordance with clause 10);
(c) the Microsoft Liens (which shall be permitted or Discharged in accordance with clauses 6.14 and 6.15);
(d) any amounts owing from a Group Company to another Group Company under any Intercompany Loan Agreement;
(e) any amounts owed under any Intra-group Debt; and
(f) any liability in respect of any lease or hire purchase agreement that would meet the definition of a finance or capital lease as at the date of this Agreement and which (i) is
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Disclosed to the Buyer in folder 10.19.1. of the Data Room and (ii) is required for the purposes of the InfraCo Business following the Reorganisation,
6.9 The Sellers shall:
(a) to the extent not previously Disclosed, deliver to the Buyer all relevant documentation related to any Existing Financial Indebtedness and any InfraCo Security as soon as reasonably practicable following the date of this Agreement and any other information or evidence that the Buyer may reasonably require in relation to the Existing Financial Indebtedness and the InfraCo Security;
(b) upon entry into any Guarantee, Encumbrance, amendment, supplement, accession, waiver, consent, release, or other material document by a Group Company after the date of this Agreement (including in relation to any Existing Financial Indebtedness and any InfraCo Security but excluding any Intra-group Debt or Intercompany Agreements) or any Successor Agreement:
(i) notify the Buyer within three (3) Business Days thereof; and
(ii) within three (3) Business Days thereof deliver to the Buyer copies of all such documents related to such amendment, supplement, accession, Guarantee, Encumbrance, waiver, consent, release, Successor Agreement or other material document;
(c) upon entry into any Capital Markets Debt and any related Encumbrances or Guarantees:
(i) within three (3) Business Days thereof notify the Buyer of such Capital Markets Debt and any related Encumbrances or Guarantees; and
(ii) within three (3) Business Days thereof deliver to the Buyer copies of all documents related to such Capital Markets Debt and any related Encumbrances or Guarantees;
(d) promptly notify the Buyer of any material event of default or acceleration event under or in connection with any Existing Debt Facilities or any Capital Markets Debt (giving reasonable details); and
(e) keep the Buyer reasonably informed of the proposed process for the Discharge of (i) the Existing Financial Indebtedness, (ii) the Capital Market Debts (if any), (iii) the InfraCo Security and (iv) any Outstanding Seller Guarantees and Encumbrances, including procuring such evidence as the Buyer may reasonably require as to the release of previous Encumbrances or Guarantees (and any filing or other action necessary or advisable in connection therewith) (together, the “Releases”).
6.10 The Sellers and the Buyer shall cooperate (each acting reasonably) in respect of any comments that the Buyer (or their advisers) may have on the Sellers’ proposals and proposed timetable in respect of obtaining creditor consent to the Reorganisation and/or the Transaction, to the extent such consent is otherwise required by the terms of this Agreement.
6.11 The Sellers shall use reasonable efforts to deliver to the Buyer no later than sixty (60) days prior to the Completion Date initial drafts of documentation relating to the Releases (including, but not limited to, pay-off letters, deeds of release, prepayment and redemption notices, escrow agreements, in each case, to the extent necessary or advisable to effectuate the Release, and any other document necessary or advisable to effect or complete each Release in full) (the “Release Documents”) and any other documents or evidence reasonably required by the Buyer in order to confirm the sufficiency of such documents, provided, however that, to the extent any Group Company incurs Capital Markets Debt on any date that
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is within sixty (60) days prior to the Completion Date, the Sellers shall provide draft Release Documents with respect thereto as soon as practicable and in any event no later than five (5) days Business Days following the entry into such Capital Markets Debt.
6.12 The Sellers shall provide all reasonably required cooperation and assistance to the Buyer and the other parties to the Release Documents:
(a) to agree the final forms of the Release Documents and any other documents that the Buyer reasonably requires relating thereto (including, without limitation, supplying contact details for the relevant counterparties and such other information as may be required by either party from time to time and incorporating any such reasonable comments as the Buyer (or their providers of financing) may have thereon); and
(b) to the termination, redemption, prepayment, repayment, closing out, discharge, release, transfer, cash collateralisation (or other similar actions) in respect of the Existing Financial Indebtedness, Capital Markets Debt (if any), InfraCo Security and Outstanding Seller Guarantees and Encumbrances in order to ensure (i) all Existing Financial Indebtedness, Capital Markets Debt (if any) and InfraCo Security of any Group Company is Discharged on or prior to the Completion Date and (ii) all Outstanding Seller Guarantees and Encumbrances are Discharged, provided that (without prejudice to any obligation of the Sellers to (i) procure each Group Company is Discharged from any Financial Indebtedness, any Guarantees (other than the Target Security) and any Encumbrances and (iii) to procure the Discharge of any Outstanding Seller Guarantees and Encumbrances) no action or otherwise shall be required to be taken to the extent that such action would result in the termination of the Credit Agreement or High Yield Indenture at any time.
6.13 The Sellers shall:
(a) procure that the agreed forms of Release Documents (in forms satisfactory in form and substance to the Buyer (acting reasonably)) are executed by all signatories thereto and shall deliver such executed Release Documents to the Buyer by no later than 5 p.m. (London time) on the fifth (5th) Business Day prior to the Completion Date; and
(b) take all such other actions as the Buyer may reasonably request for the purpose of: (i) giving effect to the Release Documents and the transactions contemplated by this clause 6.13 (including any necessary steps that may only be undertaken post-Completion); (ii) providing any evidence that providers of financing to the Buyer may require as to the status or release of any Encumbrance over the shares in, or assets of, any Group Company or any Guarantees (other than any Target Security) or Financial Indebtedness to which a Group Company is subject; and (iii) satisfying any obligation under the Buyer’s Financing Documents.
6.14 Prior to Completion, the Sellers shall:
(a) use all reasonable endeavours to facilitate discussions and provide support to Microsoft and the Buyer’s Group in connection with the discharge of any existing arrangements under the Microsoft Liens and the entry into replacement arrangements required under or in connection with the Microsoft Liens on or prior to Completion (together, the “Microsoft Documents”), including but not limited to agreeing the final forms of any replacement Microsoft Documents; and
(b) provide all reasonably required information, cooperation and assistance to the Buyer and the other relevant parties (including any Group Company or any third party) in relation to any arrangements to be implemented under the Microsoft Documents prior to, on or following the Completion Date.
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6.15 The Sellers shall procure that the agreed forms of Microsoft Documents are executed by all signatories thereto (other than the Buyer) and delivered to the Buyer by no later than 5 p.m. (London time) on the fifth (5th) Business Day prior to the Completion Date and shall take all such other actions as the Buyer may reasonably request for the purpose of giving effect to the Microsoft Documents and the transactions contemplated thereby.
6.16 For the avoidance of doubt, the provisions of clauses 6.9 through to 6.15 shall not apply to the Intra-group Debt, the Intercompany Loan Agreements, the Target Security and the RemainCo Security.
6.17 To the extent not previously Disclosed prior to the date of this Agreement, the Sellers shall (to the extent such documentation is available) at the latest forty-five (45) Business Days prior to Completion deliver to the Buyer copies of any Intercompany Loan Agreements and any Intra-Group Debt entered into prior to the date of this Agreement and outstanding as at the time of delivery of the relevant documentation.
6.18 Upon entry into any new Intercompany Loan Agreement or any new Intra-Group Debt by any Group Company (or any amendment, supplement, accession, waiver, consent, release, or other material document related to such Intercompany Loan Agreement or such Intra-Group Debt (as applicable)) by a Group Company after the date of this Agreement (including in relation to or as part of the Reorganisation), the Sellers shall within thirty (30) Business Days:
(a) notify the Buyer; and
(b) deliver to the Buyer copies of such Intercompany Loan Agreement, such Intra-Group Debt or all such documents (if available) related to any such amendment, supplement, accession, waiver, consent, release, Successor Agreement or other material document related to such Intercompany Loan Agreement or such Intra-Group Debt (as applicable).
6.19 For the purpose of clauses 6.17 and 6.18 above, any notices and documents shall be deemed validly delivered if sent by or on behalf of the Sellers in accordance with clause 29.
6.20 To the extent the Buyer considers it in the best interest of the InfraCo Business that any Intercompany Loan Agreement is discharged and the amounts outstanding under it are repaid prior to Completion, the Sellers shall consider the Buyer’s proposal in this respect in good faith, however, for the avoidance of doubt, the Sellers shall be under no obligation to procure that any such Intercompany Loan Agreements are discharged and repaid prior to Completion.
6.21 The Sellers shall procure that, prior to or concurrently with Completion, all commitments under any Group Company Cross-Perimeter Loans are cancelled in full such that there are no on-going obligations for any Group Company to lend to any RemainCo Company. The Sellers shall procure that, following Completion, all outstanding or accrued liabilities or obligations owed by a member of the Sellers’ Group (other than a Group Company) to a Group Company as at the Completion Time in respect of intra-group trading activity and the provision of services, facilities and benefits between them (including any interest and VAT thereon, but excluding any item which falls to be included in calculating the Intra-Group Financing Receivables) shall be settled in the ordinary and usual course of business.
InfraCo MSA, GTT MSA, InfraCo IP Assignment Agreement and RemainCo IP Assignment Agreement
6.22 The parties agree that the InfraCo MSA and GTT MSA are all integral parts of the Transaction.
6.23 The InfraCo IP Assignment Agreement, the RemainCo IP Assignment Agreement and the Licence Agreement are each in agreed form as at the date of this Agreement save that it is acknowledged that the parties’ lawyers have not had a sufficient opportunity to clarify the drafting or, additionally in respect of the InfraCo IP Assignment Agreement and the RemainCo
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IP Assignment Agreement only, a reasonable opportunity to obtain tax advice in respect of them and/or legal advice in respect of the local intellectual property laws governing the rights that are the subject of them. The parties shall: (i) cooperate to agree amendments to these agreed form agreements between the date of this Agreement and Completion provided that any amendments shall not conflict with the scope of the InfraCo Assets and RemainCo Assets set out in Schedule 10; and (ii) in respect of the InfraCo IP Assignment Agreement and the RemainCo IP Assignment Agreement, also provide comments on and propose minimum modifications to the operative provisions contained in the agreed forms of each of those agreements as necessary, to reflect any mandatory legal requirements to lawfully effect the assignment mechanism in any relevant jurisdiction or to address any adverse tax consequences, in each case, as soon as reasonably practicable after the date of this Agreement. Notwithstanding anything to the contrary in this provision, under no circumstances may any comments, proposals or modifications to the agreed form InfraCo IP Assignment Agreement, RemainCo IP Assignment Agreement or Licence Agreement: (i) affect the intent and purpose of those agreements; or (ii) otherwise prevent or delay the Reorganisation. The parties, acting reasonably and in good faith, agree to consider such comments and modifications to reflect agreed changes in the forms of the agreements (and the forms of such agreements, as modified in accordance with this clause 6.23, shall be the agreed forms to be entered into as part of the Reorganisation).
Escrow
6.24 The provisions of Schedule 22 shall apply from the date of this Agreement.
KPMG VDD Reports
6.25 The Sellers shall:
(a) deliver to KPMG a management representation letter signed on behalf of the Principal Seller in connection with the KPMG VDD Reports; and
(b) use reasonable endeavours to procure that KPMG prepares, updates, finalises and delivers to the Sellers the KPMG VDD Reports,
in each case, as soon as reasonably practicable after the date of this Agreement and in any event no later than 8 March 2021 (the “KPMG VDD Reports Deadline”).
Xxxx Matter Insurance Policy
6.26 The Buyer shall use reasonable endeavours to procure an insurance policy in respect of the Xxxx Matter (the “Xxxx Matter Insurance Policy”). The Buyer shall be responsible for all costs and expenses in connection with procuring the Xxxx Matter Insurance Policy.
Auction NDAs
6.27 No later than twenty-five (25) Business Days following the date of this Agreement, (a) the Sellers shall, or shall cause the relevant members of the Sellers’ Group to, serve a “return or destroy” notice or equivalent to each counterparty under each Auction NDA and (b) the Principal Seller shall deliver to the Buyer a certificate duly executed by an officer or legal counsel of the Principal Seller confirming compliance with the requirement in limb (a).
7. COMPLETION
7.1 Subject to the remainder of this clause 7, Completion of the sale and purchase of the Shares shall take place on:
(a) the later to occur of:
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(i) the date falling twenty (20) Business Days after the date on which the last Condition is satisfied; and
(ii) the date that is forty-five (45) Business Days after the date on which the updated KPMG VDD Reports are delivered to the Buyer in accordance with clause 6.25; or
(b) such other date and/or at such other time and place as the Sellers’ Representative and the Buyer may agree.
7.2 On Completion, the Sellers and the Buyer shall perform, or procure the performance of, their respective obligations in relation to the sale and purchase of the Shares simultaneously and in accordance with and as set out in Schedule 4.
7.3 The Sellers hereby confirm that: the Sellers’ Solicitors are irrevocably authorised by the Sellers to receive payment of the Consideration (including the Initial Purchase Price and any adjustment amounts pursuant to clause 3.12 on the Sellers’ behalf and the receipt by the Sellers’ Solicitors of the relevant amounts shall be a sufficient discharge for the Buyer of its obligations under clause 7.2 and clause 3.12(a) and the Buyer shall not be concerned to see to the application thereof or be responsible for the further distribution from the Sellers’ Solicitors to each Seller.
7.4 If:
(a) as at the date that all the Conditions have been satisfied or waived, the Release Documents are not in a form satisfactory to the Buyer (acting reasonably) or executed Release Documents (in a form satisfactory to the Buyer (acting reasonably)) have not been delivered to the Buyer in accordance with 6.13(a), the Buyer shall (prior to deferring Completion pursuant to clause 7.4(b)) set a new time for Completion, which shall be ten (10) Business Days after the date on which the Sellers deliver executed Release Documents (in a form satisfactory to the Buyer (acting reasonably)) pursuant to clause 6.13(a); and/or
(b) prior to or at the moment on which Completion is to be effected, for any reason either the Sellers or the Buyer does not do or does not procure to be done all those things set out in relation to it or its Group in Schedule 4 (the “Defaulting Party”), the Sellers (in the event the Defaulting Party is a Buyer) or the Buyer (in the event the Defaulting Party is any of the Sellers) may elect (in addition and without prejudice to all other remedies available to them) to either:
(i) unilaterally set a new time for Completion, not being more than five (5) Business Days later than the original date planned for Completion (a “Deferred Completion”), in which case this clause 7.4 shall also apply to such Deferred Completion, or
(ii) effect Completion as far as practicable (without in any way limiting the other party’s rights or remedies under this Agreement or by law, to, amongst other things, claim for damages).
7.5 If, at the moment on which the Deferred Completion is to be effected, for any reason either the Sellers or the Buyer has not done or have not procured to be done those things listed in: (i) paragraphs 1.1, 1.2, 1.4, 1.5, 1.6, 1.7, 1.11, 1.13 and 1.16 of Part 1 of Schedule 4 and in clauses 4.4(g), 4.4(h), 6.6 and 6.7 in case of the Sellers, and (ii) paragraphs 1.17, 1.18 and 1.19 of Part 2 of Schedule 4 in case of the Buyer (the “Material Completion Obligations”), the Sellers (in the event the Defaulting Party is the Buyer) or the Buyer (in the event the Defaulting Party is any of the Sellers) may (in addition and without prejudice to all other remedies available to it) terminate this Agreement.
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7.6 If, on the date on which the last of the Conditions is satisfied, for any reason the Reorganisation (other than Future System Milestone Completion) has not been implemented and completed in accordance with clause 6.2 (disregarding for this purpose any Immaterial Reorganisation Default) (the “Reorganisation Completion Obligation”), the Completion Date shall, subject to clause 7.7 and unless the parties agree otherwise in writing, be automatically deferred until after the Reorganisation Completion Obligation has been satisfied or such shorter period as agreed by the parties in writing (the “Extension Period”). During the Extension Period (i) clause 6.2 shall continue to apply to the Sellers, (ii) the parties shall work together in good faith to satisfy the Reorganisation Completion Obligation so that Completion can take place as soon as possible, and (iii) the Sellers shall provide such information and supporting documentation as is reasonably requested by the Buyer for the purpose of this clause 7.6. Where this clause applies, the parties agree to proceed to Completion as soon as possible following satisfaction of the Reorganisation Completion Obligation, provided that Completion shall not (unless otherwise agreed by the parties in writing) take place less than ten (10) Business Days following satisfaction of the Reorganisation Completion Obligation.
7.7 Subject to clauses 7.8 and 7.10 or any agreement in writing between the parties to the contrary, if the Reorganisation Completion Obligation has not been satisfied on or before the Termination Date, this Agreement shall automatically terminate (unless the parties have agreed otherwise in writing on or prior to the Termination Date).
7.8 If it becomes reasonably apparent that the Reorganisation Completion Obligation will not or cannot be satisfied by the Termination Date, the Buyer or (subject to the following sentence) the Sellers may resolve (in their respective sole discretion) to terminate this Agreement by giving Notice thereof to the Sellers (in the case of termination by the Buyer) or the Buyer (in the case of termination by the Sellers) (in addition and without prejudice to all other remedies available to the parties under the Transaction Documents).
7.9 The Sellers shall not be entitled to terminate this Agreement under this clause 7.8(a) if the Reorganisation Completion Obligation has not been satisfied as a direct or indirect result of a deliberate, negligent or material breach of this Agreement by any Seller or any other deliberate or negligent act or deliberate or negligent omission of any Seller and (b) unless the Sellers have given not less than ten (10) Business Days’ Notice of termination under this clause and the Buyer has not elected to proceed to Completion within ten (10) Business Days of receipt of that Notice (in which case, this Agreement shall terminate upon the expiry of that ten (10) Business Day period).
7.10 The Buyer may:
(a) at any time during the Extension Period; or
(b) within ten (10) Business Days’ of the Sellers’ Notice of termination under clause 7.8,
elect to waive the Reorganisation Completion Obligation, in which case Completion shall take place as soon as possible following such waiver, provided that Completion shall not (unless otherwise agreed by the parties in writing) take place less than ten (10) Business Days following the waiver of the Reorganisation Completion Obligation.
7.11 For the purpose of this Agreement, the Reorganisation Completion Obligation shall be considered to have been satisfied only if the Reorganisation has been implemented and completed in accordance with clause 6.2 (disregarding for this purpose any Immaterial Reorganisation Default), and without prejudice to the foregoing and without limitation, the Reorganisation Completion Obligation shall not be considered to have been satisfied unless:
(a) the Group Companies hold or otherwise have the benefit of all InfraCo Assets (including, subject to (b) below, any InfraCo Contracts and, subject to 7.11(c) below, InfraCo Business Licences) in the manner in which the Group Companies are
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intended, pursuant to the terms of the Transaction Documents upon completion of the Reorganisation, to hold or otherwise have the benefit of such InfraCo Assets as contemplated by the Transaction Documents (disregarding for this purpose any Immaterial Reorganisation Default);
(b) the Group Company holds or otherwise have the benefit of:
(i) InfraCo Contracts that generate in aggregate a MRR equal to 90% of the aggregate amount of revenue generated by the InfraCo Contracts as determined by reference to MMR in the last full calendar month immediately prior to the date on which the Reorganisation Completion Obligation is being assessed) being held:
(A) as Existing InfraCo Contracts;
(B) in the case of the InfraCo Part of the Shared RemainCo Contracts and the InfraCo Part of the Shared InfraCo Contracts, under an agreement or arrangement that complies with the requirements of paragraph 1.1 or 3.1 respectively of Schedule 11 and with Contract Authorisation having been obtained for such agreement or arrangement; or
(C) in the case of Transferring InfraCo Contracts, pursuant to an effective assignment or transfer that complies with paragraph 2.1 of Schedule 11 and with Contract Authorisation having been obtained for such assignment or transfer,
(ii) RemainCo Contracts that generate in aggregate a MRR equal to 90% of the aggregate amount of revenue generated by the RemainCo Contracts as determined by reference to MMR in the last full calendar month immediately prior to the date on which the Reorganisation Completion Obligation is being assessed), being held:
(A) as Existing RemainCo Contracts;
(B) in the case of the RemainCo Part of the Shared InfraCo Contracts and the RemainCo Part of the Shared RemainCo Contracts, under an agreement or arrangement that complies with the requirements of paragraph 2.1 1.1 or 4.1 respectively of Schedule 11 and with Contract Authorisation having been obtained for such agreement or arrangement; or
(C) in the case of Transferring RemainCo Contracts, pursuant to an effective assignment or transfer that complies with paragraph 4.1 of Schedule 11 and with Contract Authorisation having been obtained for such assignment or transfer;
(c) all PoP Contracts have been transferred with Contract Authorisation having been obtained in accordance with paragraph 15.1 of Schedule 11;
(d) the Group Companies hold or have the benefit of (including pursuant to the terms of the Transaction Documents) all the InfraCo Business Licences upon completion of the Reorganisation as contemplated by the Transaction Documents;
(e) it is legally permissible for the Parties to proceed to Completion; and
(f) CMD Milestone Completion has occurred.
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7.12 For the purpose of clause 7.11(a) above (but not any other part of clause 7.11), a Group Company shall not be deemed to hold or otherwise have the benefit of any InfraCo Contract in the manner in which the Group Companies are intended, pursuant to the terms of the Transaction Documents upon completion of the Reorganisation, to hold or otherwise have the benefit of such InfraCo Assets as contemplated by the Transaction Documents unless:
(a) that InfraCo Contract is an Existing InfraCo Contract or a Shared InfraCo Contract;
(b) in the case of a Shared RemainCo Contract, either (A) an arrangement is in place in accordance with paragraph 1.1 of Schedule 11 or (B) the Sellers’ Group is, has been and will be operating the InfraCo Part of the Shared RemainCo Contract in accordance with paragraph 1.2 of Schedule 11 from Completion and, if required, Contract Authorisation of the counterparty/ies to the relevant Shared RemainCo Contract under paragraph 1.3 of Schedule 11 has been obtained or is reasonably expected to be obtained prior to the Contract Long Stop Date, but not if an alternative solution is required under paragraph 1.3(b) of Schedule 11 but has not been achieved and is not reasonably expected to be achieved prior to the Contract Long Stop Date; or
(c) in the case of a Transferring InfraCo Contract, either (A) the benefit and/or burden has been assigned or transferred to the relevant Group Company (if required, with Contract Authorisation of the other counterparty/ies to the relevant Transferring InfraCo Contract in accordance with paragraph 2.1 of Schedule 11) or (B) the Sellers’ Group is, has been and will from Completion be performing its obligations in accordance with paragraphs 2.2 and 2.3 of Schedule 11 and, if required, Contract Authorisation of the counterparty/ies to the relevant Transferring InfraCo Contract has been obtained or is reasonably expected to be obtained prior to the Contract Long Stop Date, but not if an alternative solution is required under paragraph 2.3(e) of Schedule 11 but has not been achieved and is not reasonably expected to be achieved prior to the Contract Long Stop Date,
and subject in each case to (1) such InfraCo Contract being in force and effect, except where such InfraCo Contract has terminated in accordance with its terms, and (2) no counterparty to such InfraCo Contract having given notice to terminate such InfraCo Contract, except to exercise termination rights in accordance with its terms; and
(d) 7.11(a) above, a Group Company shall be deemed to hold or otherwise have the burden of any RemainCo Contract otherwise than in the manner in which the Group Companies are intended or pursuant to the terms of the Transaction Documents, upon completion of the Reorganisation, not to hold or otherwise have the burden of such RemainCo Contract as contemplated by the Transaction Documents if:
(i) in the case of a Shared InfraCo Contract, either (A) an arrangement is not in place in accordance with paragraph 3.1 of Schedule 11; or (B) the Sellers’ Group is not, has not been and/or will not be operating the RemainCo Part of the Shared InfraCo Contract in accordance with paragraph 3.2 of Schedule 11 from Completion, and, if required, Contract Authorisation of the counterparty/ies to the relevant Shared InfraCo Contract under paragraph 3.3 of Schedule 11 has not been obtained and is not reasonably expected to be obtained prior to the Contract Long Stop Date and where an alternative solution is required under paragraph 3.3 of Schedule 11 but has not been achieved and is not reasonably expected to be achieved prior to the Contract Long Stop Date; or
(ii) in the case of a Transferring RemainCo Contract, either (A) the burden has not been assigned or transferred to the relevant member of the Sellers’ Group (if required, with Contract Authorisation of the counterparty/ies to the relevant Transferring RemainCo Contract in accordance with paragraph 4.1
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of Schedule 11) or (B) the Sellers’ Group is not, has not been and/or will not from Completion be performing its obligations in accordance with paragraphs 4.2 and 4.3 of Schedule 11 from Completion, and, if required, Contract Authorisation of the counterparty/ies to the relevant Transferring RemainCo Contract has not been obtained and is not reasonably expected to be obtained prior to the Contract Long Stop Date, and also where an alternative solution is required under paragraph 4.3(f) of Schedule 11 but has not been achieved and is not reasonably expected to be achieved prior to the Contract Long Stop Date,
and including in each case (1) if such RemainCo Contract is not in force and effect, except where such RemainCo Contract has terminated in accordance with its terms, and also (2) if a counterparty to such RemainCo Contract has given notice to terminate such RemainCo Contract, except to exercise termination rights in accordance with its terms
7.13 If the parties proceed to Completion pursuant to clause 7.10 notwithstanding that the Reorganisation Completion Obligation has not been satisfied:
(a) the Sellers shall (without affecting any other rights or remedies available to the Buyer), unless otherwise requested by the Buyer, use all reasonable endeavours to procure (at their own cost) that the Reorganisation Completion Obligation is fulfilled and any Immaterial Reorganisation Default is remedied as soon as practicable following Completion and in any event within three (3) calendar months after and excluding the Completion Date or such other date as may be agreed between the parties in writing;
(b) until satisfaction of the Reorganisation Completion Obligation and any Immaterial Reorganisation Default have been remedied (and, for the avoidance of doubt, thereafter in accordance with their terms), the provisions of the Separation Schedules shall continue to apply to the extent not already satisfied prior to Completion; and
(c) the Buyer shall, if it makes a request under clause 7.13(a) above, provide such assistance and take such steps as the Sellers may reasonably request to enable the Sellers to comply with their obligations under that clause.
7.14 Subject at all times to clauses 7.6 to 7.13 above in respect of the Reorganisation Completion Obligation, if the Defaulting Party complies with all its Material Completion Obligations, but fails to comply with any other obligation set out in Schedule 4 that is not a Material Completion Obligation, then the Sellers (in the event the Defaulting Party is a Buyer) or the Buyer (in the event the Defaulting Party is any of the Sellers) shall be required to proceed to Completion and, to the extent that any such obligation is not complied with at Completion, the Defaulting Party shall (without affecting any other rights and remedies available to any other party) use all reasonable endeavours to procure that such obligation is fulfilled as soon as practicable following Completion and in any event within three (3) calendar months after and excluding the Completion Date.
7.15 If this Agreement terminates in accordance with clause 4.24, 5.1, 5.4, 5.5, 7.5, 7.7 or 7.8 save for the Surviving Provisions, all of the provisions of this Agreement shall lapse and cease to have effect (provided that neither the lapsing of those provisions nor their ceasing to have effect shall affect any accrued rights or liabilities of any party in respect of damages for non-performance of any obligation falling due for performance prior to such lapse and cessation).
8. SELLERS’ WARRANTIES AND INDEMNITY
8.1 The Sellers jointly and severally warrant to the Buyer in terms of the Title Warranties as at the date of this Agreement and, save for the warranty set out in paragraph 1.2 of Part 1 of Schedule 5 which, provided an Acceptable RSA has been entered into or an Acceptable Sale Order has been obtained, in each case prior to Completion, shall be given only as at the date
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of this Agreement and subject to clause 8.2 below, immediately before Completion (by reference to the facts and circumstances existing on such date and as if references in the Titles Warranties to “the date of this Agreement” were references to the Completion Date), subject to the exclusions, limitations and qualifications set out in this clause 8, clause 24, clause 25 and Part 1 of Schedule 6.
8.2 The Title Warranties set out in paragraphs 1.4 to 1.6 of Part 1 of Schedule 5 shall be given immediately before Completion pursuant to clause 8.1 above with the modifications set out below (provided that such modifications shall only apply to the extent that an Acceptable RSA or an Acceptable Sale Order has been obtained):
“1.4 Subject to Bankruptcy Court approval to the extent a Chapter 11 Case has been commenced prior to Completion, each Seller has the requisite capacity and authority to enter into and perform this Agreement and each of the other Transaction Documents to which it is or will be a party.
1.5 Each Seller has obtained all corporate and shareholder authorisations and (save for any consents and approvals to be obtained pursuant to the terms of the Reorganisation Documents (including pursuant to clause 4 of this Agreement) and Bankruptcy Court approval to the extent a Chapter 11 Case has been commenced prior to Completion) all other consents, licenses and authorisations required to empower it to enter into and perform its obligations under this Agreement and each of the other Transaction Documents to which it is or will be a party.
1.6 All authorisations from, and notices or filings with, any governmental or other authority that are necessary to enable each Seller to execute, deliver and (save for any consents and approvals to be obtained pursuant to the terms of the Reorganisation Documents (including but not limited to pursuant to clause 4 of this Agreement) ) and Bankruptcy Court approval to the extent a Chapter 11 Case has been commenced prior to Completion) perform its obligations under this Agreement and each of the other Transaction Documents to which it is or will be a party have been obtained or made (as the case may be) and are in full force and effect and all conditions of each such authorisation have been complied with.”
8.3 The Principal Seller warrants to the Buyer in terms of the Business Warranties as at the date of this Agreement and immediately before Completion (by reference to the facts and circumstances existing on such date and as if references in the Business Warranties to “the date of this Agreement” were references to the Completion Date), subject to:
(a) the exclusions, limitations and qualifications set out in this clause 8, clause 24, clause 25 and Part 1 of Schedule 6;
(b) any matter Disclosed in the Disclosure Documents;
(c) in respect of the Business Warranties when warranted immediately before Completion, any matter Disclosed in the Completion Disclosure Letter but only to the extent that such matter occurred after the date of this Agreement; and
(d) any matter referred to or provided for under the terms of this Agreement or any other Transaction Document.
8.4 To the extent any of the Business Warranties given as at the date of this Agreement is qualified by the expression “so far as each of the Sellers is aware” such awareness shall be confined to the actual knowledge of each Seller having made reasonable enquiries of the Senior Management Team, Xxxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxx Xxxxxxx, Xxxxxxxxxx Xxxxxx (in respect of the Business Warranties at paragraphs 10 (Employees ) and 11 (Pensions) of Schedule 5 only) and Xxxxx Xxxxxxx (in respect of the Business Warranties at paragraphs 2 (Accounts), 3 (Events since the Accounts Date) and 12 (Properties) of Schedule 5 only) in each case as at the date of this Agreement.
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8.5 To the extent any of the Business Warranties when warranted immediately before Completion is qualified by the expression “so far as each of the Sellers is aware” such awareness shall be confined to the actual knowledge of each Seller having made reasonable enquiries of the Senior Management Team (excluding for this purpose Xxxxxx Xxxx), Xxxxxx Xxxxxxx, Xxxxxxxxxx Xxxxxx (in respect of the Business Warranties at paragraphs 10 (Employees ) and 11 (Pensions) of Schedule 5 only), Xxxxx Xxxxxxx and Xxxxxx XxxXxxx.
8.6 The Business Warranties contained in paragraphs 7, 12, 13, 14 and 15 of Schedule 5 shall be deemed to be given in respect of the InfraCo Business as a whole (whether carried on by a Group Company or a RemainCo Company as at the date of this Agreement) and not just in respect of the Group Companies.
8.7 Each Warranty shall be separate and independent and, save as expressly provided, shall not be limited by reference to any other Warranty.
8.8 For the avoidance of doubt, except to the extent expressly stated in the Business Warranties, no warranty, express or implied, is given in relation to any information or expression of opinion, intention or expectation or any forecast or projection contained or referred to in the Disclosure Documents.
8.9 The Buyer covenants with the Sellers that any W&I Policy will include an express waiver of any rights of subrogation against each Seller (except in the event of fraud by that Seller).
8.10 The Buyer covenants with the Sellers that, following procurement of any W&I Policy, it will not agree to any amendment or variation of the W&I Policy (or do anything which has a similar effect) to the extent that the liability of the Sellers thereunder or under the Warranties in this Agreement will be increased as a result of such amendments or variation.
8.11 Except in the case of fraud and as against any individual or entity who has acted fraudulently, the Buyer agrees and undertakes with the Sellers that, other than pursuant to the terms of this Agreement:
(a) neither they nor any other member of the Buyer’s Group has any rights against, and will waive and shall not make any claim against, any employee, director, officer, adviser or agent of any of the Sellers or any of its Affiliates on whom the Buyer may have relied before agreeing to any term of this Agreement or before entering into this Agreement; and
(b) it will procure that as from Completion, each Group Company grants full discharge from liability to each of the directors and officers of each Group Company in relation to any period prior to Completion and waives and does not make any claims against any such person.
8.12 The Sellers shall indemnify and hold harmless the Buyer and/or the relevant Group Company (as applicable) against any Losses incurred by the Buyer and/or the relevant Group Company (as applicable) directly as a result of or in connection with the Reorganisation (including any failure by the Sellers to comply with their obligations under this Agreement in respect of the Reorganisation but excluding any Losses or obligations in respect of or relating to Tax) (the “Reorganisation Indemnity”).
8.13 The Principal Seller shall prepare and provide to the Buyer no later than five (5) Business Days prior to the Completion Date a first draft of the Completion Disclosure Letter, which shall include all specific disclosures which the Principal Seller proposes to include as at that date and copies of all documents to be annexed thereto, and shall thereafter provide updated drafts regularly until provision of the final version on the Completion Date.
8.14 Save in the case of fraud and except as expressly agreed otherwise under the Transaction Documents, conditional on Completion each Seller (for itself and on behalf of each member of
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the Sellers’ Group) undertakes to each member of the Buyer’s Group and to the Group Companies and their respective directors, officers, employees and agents to waive any rights, remedies or claims which it or any member of the Sellers’ Group may have against such directors, officers, employees and agents of any member of the Buyer’s Group or any Group Company, including but not limited to rights, remedies or claims in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by a Group Company or its directors, officers, employees or agents.
9. BUYER WARRANTIES AND UNDERTAKINGS
9.1 The Buyer warrants to each of the Sellers in terms of the Buyer Warranties as at the date of this Agreement and immediately before Completion (by reference to the facts and circumstances existing on such date and as if references in the Buyer Warranties to “the date of this Agreement” were references to the Completion Date).
9.2 The Buyer warrants to each Seller that it is not actually aware of any fact or circumstance that may allow it to bring a Claim of any nature against any Seller. For the purposes of this clause and Schedule 6, the actual awareness of the Buyer shall consist only of those matters of which Xxxxxx Xxxxxxxx, Mohamed El Gazzar, Xxxxxxxxx Xxxxxxxx and Xxxxxx Del Xxxxx are actually aware as at the date of this Agreement but not any imputed or implied knowledge or awareness he or she may have had.
9.3 The Buyer acknowledges and agrees that:
(a) it has performed, with the assistance of professional advisers, a due diligence investigation with respect to the Shares, the Group Companies and the InfraCo Business (the “Due Diligence Investigation”); and
(b) for the purposes of the Due Diligence Investigation, the Buyer has had (and its advisors have had) sufficient opportunity to review any and all information made available to the Buyer and its advisers, by having had, among other things:
(i) access to the Data Room;
(ii) the opportunity to submit questions and to receive answers from the Sellers on any matter that the Buyer deemed proper and necessary for the purpose of entering into the Transaction; and
(iii) access to the Senior Management Team.
9.4 In the event the Buyer enters into Buyer Financing Documents after the date of this Agreement:
(a) the Buyer undertakes prior to Completion (a) not to agree waive its rights under, change, amend, assign or otherwise modify or terminate any of the Buyer Financing Documents in a manner that would materially prejudice Completion; or (b) to use the Funds for any purpose other than as contemplated by the Buyer Financing Documents, in each case including the financing of its obligations as contemplated in this Agreement;
(b) the Buyer will prior to Completion:
(i) keep the Sellers informed of material developments in respect of any equity financing process related to the Transaction; and
(ii) give the Sellers’ Representative prompt written notice of any of material event of default by any party to the Buyer Financing Documents (or any circumstances which could give rise to such material event of default) of
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which the Buyer becomes aware and which would be reasonably likely to materially prejudice Completion; and
(c) the Buyer will (and shall procure that each other member of the Buyer’s Group that is party to the Buyer Financing Documents will):
(i) take all actions within its sole control required to draw down the Funds and enabling it to make all payments due to be made pursuant to clause 3, clause 7 and Schedule 4 of this Agreement; and
(ii) not, and will procure that no other member of the Buyer’s Group shall, take any action or fail to take any action which would be reasonably likely to materially prejudice the ability of the Buyer to draw down the Funds on Completion in order to comply with its obligations under this Agreement.
10. CORPORATE GUARANTEES
10.1 The Sellers:
(a)
(i) shall procure that any RemainCo Security is discharged (and shall ensure that any RemainCo Security remains valid and effective (unless replaced by an equivalent RemainCo Security) until it is discharged) on the date of Completion (and shall renew or replace any RemainCo Security that would otherwise lapse prior to then); and
(ii) shall not, and shall ensure than any RemainCo Company shall not, do anything that would give rise to a material breach of the terms of any RemainCo Security,
in each case to the extent that any such RemainCo Security is required by the Group Companies or the InfraCo Business; and
(b) shall not discharge, or do anything that would give rise to a material breach of the terms of, any Target Security without the prior written consent of the Buyer and otherwise in accordance with this clause 10, and shall procure that any Target Security remains valid and effective on (and shall procure that any Target Security that would otherwise lapse on or prior to) the date of Completion be renewed or replaced unless otherwise instructed in writing by the Buyer and in each case to the extent that any such Target Security is required by the Group Companies or the InfraCo Business.
10.2 As soon as reasonably practicable following the date of this Agreement (and in any event no later than three (3) calendar months from the date of this Agreement), the Sellers shall:
(a) to the extent not previously Disclosed, deliver to the Buyer all relevant documentation related to any RemainCo Security (including, but not limited, to documentation in relation to the relevant Secured RemainCo Contracts); and
(b) provide any other information or evidence reasonably requested by the Buyer in relation to the RemainCo Security, including contact details for the relevant beneficiaries and any other information or evidence reasonably required from time to time.
10.3 The Sellers shall use all reasonable endeavours to arrange for the RemainCo Security to be terminated and discharged in full upon delivery by the Buyer of such replacements of the RemainCo Security as the Buyer may agree with the counterparties to each Secured
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RemainCo Contract (the “RemainCo Replacement Security”), including by providing all reasonably required cooperation and assistance to the Buyer and the other parties to RemainCo Security and the Secured RemainCo Contracts to agree the final forms of any replacement documentation in relation to each RemainCo Security with all parties thereto, no later than 5 p.m. (London time) on the fifth (5th) Business Day prior to the Completion Date.
10.4 The Sellers shall:
(a) on Completion, deliver to the Buyer the signatures to the RemainCo Replacement Security of any Group Company (to the extent required) and evidence of discharge of the RemainCo Security reasonably required by the Buyer; and
(b) use commercially reasonable endeavours to take all such other actions as the Buyer may reasonably request for the purpose of giving effect to the RemainCo Replacement Security and the transactions contemplated thereby (for the avoidance of doubt, the Sellers shall not be obliged to enter into any documentation in connection with the RemainCo Replacement Security).
10.5 To the extent that, following Completion, any party becomes aware of any RemainCo Security not released pursuant to clauses 10.1 to 10.4 above) or there is any RemainCo Security still outstanding (together the “Retained RemainCo Security”):
(a) that party shall promptly give Notice to the other parties that is has become aware of such Retained RemainCo Security, together with reasonable details thereof;
(b) the Buyer shall (i) use all reasonable endeavours to cancel or replace any such Retained RemainCo Security as soon as reasonably practicable after becoming aware of the existence of any such Retained RemainCo Security, and (ii) indemnify the Principal Seller and relevant members of the Sellers’ Group against any and all Liabilities, Losses, costs, expenses and/or demands arising under or in connection with the Retained RemainCo Security until they are cancelled or replaced; and
(c) each party shall provide the other with any reasonable cooperation required to enable the other party to cancel or replace any such Retained RemainCo Security.
10.6 As soon as reasonably practicable following the date of this Agreement (and in any event no later than three (3) calendar months from the date of this Agreement or, if later, promptly upon the creation of such Target Security), the Sellers shall:
(a) to the extent not previously Disclosed, deliver to the Buyer the documentation related to any Target Security (including, but not limited to documentation in relation to the relevant InfraCo Bank Guarantees and Guaranteed InfraCo Contracts); and
(b) provide any other information or evidence reasonably requested by the Buyer in relation to the Target Security, including contact details for the for the relevant provider of financing, the relevant beneficiaries and any other information or evidence reasonably required from time to time.
10.7 The Sellers shall provide all reasonably required cooperation and assistance to the Buyer and the other parties to InfraCo Bank Guarantees and the Guaranteed InfraCo Contracts to negotiate and agree any consents, waivers, amendments or replacements that may be reasonably required in connection with the Transaction, as soon as reasonably practicable following the date of this Agreement.
10.8 The Buyer shall provide all reasonably required cooperation and assistance to the Sellers and the other parties to RemainCo Bank Guarantees and the Guaranteed RemainCo Contracts to negotiate and agree any consents, waivers, amendments or replacements that may be reasonably required in connection with the Transaction.
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10.9 With effect from Completion, the Buyer shall use all reasonable efforts to obtain letters of credit from the Group’s third party finance providers in order to replace the Letters of Credit and thereby cause the release of all Collateralised Cash as soon as reasonably practicable after Completion but in any event no later than sixty (60) days following the Completion Date (provided that in the event the Buyer provides the Principal Seller with reasonable evidence in writing that it continues to spend all reasonable efforts to achieve expeditious satisfaction of the obligation set out in this clause 10.9, the Principal Seller shall not unreasonably withhold its consent to a written request by the Buyer for a fifteen (15) Business Day extension of a deadline set forth in this clause 10.9, and any such further fifteen (15) Business Day extensions shall require additional written evidence to be provided by the Buyer). If but only to the extent that any Collateralised Cash is released to a member of the Buyer’s Group following Completion, the Buyer undertakes to the Principal Seller to pay to the Principal Seller all Collateralised Cash that is actually released to it (less the aggregate amount of cash collateral, if any, that the Buyer’s Group is required to provide in connection with the new letters of credit obtained pursuant to this clause 10.9) no later than five (5) Business Days following its receipt net of any reasonable fees, costs and expenses incurred solely in connection with procuring the release of such cash (and, for the avoidance of doubt, excluding any costs incurred in connection with the wider financing arrangements of the Buyer’s Group). The Sellers shall and shall procure that the relevant members of the Sellers’ Group shall provide all such information, cooperation and assistance as the Buyer shall reasonably require prior to and/or following Completion (including without limitation access to the issuers and beneficiaries of the Letters of Credit) in order to obtain new letters of credit and thereby in order to effectuate the release of such Collateralised Cash in accordance with this clause 10.9.
11. RESTRICTIVE COVENANTS
11.1 Each Seller covenants with the Buyer that it shall not (and shall procure that no member of the Sellers’ Group shall), for a period of twelve (12) calendar months from Completion, solicit or entice away from any Group Company any person who is at the relevant time and at Completion an InfraCo Employee or compel any InfraCo Employee to leave his or her employment with the Buyer’s Group for the purpose of enabling a Seller or member of the Sellers’ Group to employ that InfraCo Employee in compliance with this clause.
11.2 Nothing in clause 11.1 shall prohibit any Seller or member of the Sellers’ Group from:
(a) employing any person (including, but not limited to any InfraCo Employee) who responds to a recruitment or other advertisement, provided that such response was not solicited or induced directly or indirectly by that Seller or member of the Sellers’ Group; or
(b) employing any person (including, but not limited to any InfraCo Employee) whose employment or engagement with the Buyer’s Group has been terminated, provided that such termination was not solicited or induced directly or indirectly by a Seller or member of the Sellers’ Group; and/or
(c) taking or failing to take any action which would otherwise constitute a breach of clause 11.1, provided the Buyer has given its prior written consent to such act or omission.
11.3 The Buyer covenants with the Sellers that it shall not (and shall procure that no member of the Buyer’s Group shall), for a period of twelve (12) calendar months from Completion, solicit or entice away from any member of the Sellers’ Group any person who is at the relevant time an employee of the Sellers’ Group (a “Sellers’ Group Employee”) or compel any Sellers’ Group Employee to leave his or her employment with the Sellers’ Group for the purpose of enabling the Buyer or member of the Buyer’s Group to employ that Sellers’ Group Employee in compliance with this clause.
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11.4 Nothing in clause 11.3 shall prohibit the Buyer or member of the Buyer’s Group from:
(a) employing any person (including, but not limited to a Sellers’ Group Employee) who responds to a recruitment or other advertisement, provided that such response was not solicited or induced directly or indirectly by the Buyer or member of the Buyer’s Group; or
(b) employing any person (including, but not limited to any Sellers’ Group Employee) whose employment or engagement with the Sellers’ Group has been terminated, provided that such termination was not solicited or induced directly or indirectly by the Buyer or member of the Buyer’s Group; and/or
(c) taking or failing to take any action which would otherwise constitute a breach of clause 11.3, provided the Sellers have given their prior written consent to such act or omission.
12. ANNOUNCEMENTS
12.1 Notwithstanding clause 13, no party (nor any of their respective Affiliates) shall make any announcement or issue any communication to shareholders in connection with the existence or subject matter of this Agreement (or any other Transaction Document) without the prior written approval of the Principal Seller and the Buyer (such approval not to be unreasonably withheld or delayed).
12.2 The restriction in clause 12.1 shall not apply:
(a) to the press announcement to be issued by the Sellers and the Buyer on or around the date of this Agreement in the agreed form (the “Announcement”);
(b) subject to clause 13, to any communications made by or on behalf of any Group Company to any client, supplier or staff member of such Group Company; and
(c) to the extent that the announcement or communication to shareholders is required by law, by any stock exchange or any regulatory or other supervisory body or authority of competent jurisdiction, whether or not the requirement has the force of law.
12.3 If the exception set out in clause 12.2(c) applies, the party making the announcement or issuing the circular shall (to the extent legally permitted and reasonably practicable) provide the other parties with copies of any such announcement in advance of the issuance.
13. CONFIDENTIALITY
13.1 For the purposes of this clause 13, “Confidential Information” means:
(a) (in relation to the obligations of the Buyer) any information received directly or indirectly or held by the Buyer (or any of its Representatives) relating to a Seller and/or any of its Affiliates from time to time and, prior to Completion, any of the Group Companies or the InfraCo Business; or
(b) (in relation to the obligations of each Seller) any information received directly or indirectly or held by each Seller (or any of their Representatives) relating to the Buyer’s Group and, following Completion, the InfraCo Business; and
(c) the contents and existence of information detailed in and relating to, the provisions of, and negotiations leading to, this Agreement and the Transaction Documents,
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and includes written information and information transferred or obtained orally, visually, electronically or by any other means and any information which the party has determined from information it has received including any forecasts or projections.
13.2 Each of the Sellers and the Buyer shall, and shall ensure that their respective Representatives shall, maintain Confidential Information in confidence and not disclose Confidential Information to any person except: (i) as permitted by clause 12 or this clause 13; or (ii) with the prior written approval of (in the case of the Buyer disclosing) the Principal Seller or (in the case of a Seller disclosing) the Buyer.
13.3 Subject to clause 13.4 below, clause 13.2 shall not prevent disclosure by a party or any of its Representatives to the extent that:
(a) disclosure is required by law or by any stock exchange or any regulatory, governmental or antitrust body (including any Taxation Authority) having applicable jurisdiction provided that, except in connection with disclosure to a Taxation Authority, the disclosing party shall first inform (in the case of the Buyer disclosing) the Seller(s) to whom the Confidential Information relates and (in the case of a Seller disclosing) the Buyer of its intention to disclose such Confidential Information and take into account the reasonable comments (to the extent received promptly and, in the case of the Buyer (acting reasonably), not considered to be restricted under or to be contrary to or incompatible with any applicable law or regulation or the rules, guidance or requirements of any regulatory or legal body or stock exchange) of (in the case of a Buyer disclosing) the Seller to whom the Confidential Information relates and (in the case of a Seller disclosing) the Buyer;
(b) disclosure is to a Taxation Authority or other professional adviser in circumstances where such disclosure is reasonably necessary for the management of the Tax affairs of a Seller, the Buyer or any of their Affiliates;
(c) disclosure is of Confidential Information which was lawfully in the possession of that party or any of its Representatives (in either case as evidenced by written records) without any obligation of secrecy prior to its being received or held (it being acknowledged that each Seller was bound by an obligation of secrecy prior to receipt of any Confidential Information from any of the Group Companies);
(d) disclosure is of Confidential Information which has previously become publicly available other than through (i) that party’s action or failure to act (or that of its Representatives) or (ii) as a result of a breach by a party or its Representatives of any obligation of confidentiality owed to the other parties under this Agreement or the Transaction Documents;
(e) disclosure is necessary for the purpose of the satisfaction of the Conditions;
(f) disclosure is required for the purpose of any arbitral or judicial proceedings arising out of this Agreement (or any other Transaction Document);
(g) such disclosure is made to (i) lending or hedging institutions (including hedge counterparties) of the Buyer or any of its Affiliates or arrangers of such funding (or their respective Affiliates) or rating agencies engaged by or on behalf of the Buyer, (ii) actual or potential equity finance providers or (iii) any person to whom assignment of this Agreement is permitted under clause 19.2(b) (or their respective Affiliates), in each case together with their respective directors, officers and advisers, provided, in each case, that such funding is being provided in relation to the Transaction or any refinancing or syndication of such funding;
(h) in the case of each Seller, such disclosure is made to its Affiliates and its and their respective directors, officers, partners, consultants, members or employees; or
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(i) in the case of the Buyer, such disclosure is made to (a)(i) its Affiliates, (ii) direct or indirect members, partners, shareholders, investors or equityholders of the Buyer or its Affiliates or (iii) any general partner, limited partner, trustee, nominee, operator, arranger or manager of, or investment adviser to, any person under (i) or (ii) above, or (b) the respective directors, officers, partners, consultants, members or employees of the Buyer and the persons listed in (a) above,
and, in the case of disclosure under paragraphs (g), (h) and (i), such parties are under a duty of confidentiality on substantially the same terms as this clause 13.
13.4 Each of the Sellers and the Buyer undertake that it (and its Representatives) shall only disclose Confidential Information as permitted by this clause 13 if it is reasonably required and, in the case of disclosures under clauses (g) and (h) above, only if the recipient is informed of the confidential nature of the Confidential Information and is subject to an obligation to keep confidential any information so disclosed.
13.5 If this Agreement terminates, the Buyer shall as soon as practicable on written request by any Seller:
(a) return to such Seller all written documents and other materials relating to such Seller or its Affiliates, any Group Company or this Agreement (including any Confidential Information) which any Seller (or its Representatives) or any Group Company have provided to the Buyer (or its Representatives) without keeping any copies thereof;
(b) destroy all information or other documents derived from such Confidential Information (provided that the Buyer shall not destroy any information it is required by law, regulation or the rules of any stock exchange to retain); and
(c) so far as it is practicable to do so, expunge such Confidential Information from any computer, word processor or other device.
13.6 The Confidentiality Agreement shall cease to have any force or effect from the date of this Agreement and the parties thereto shall be entitled to rely on this clause 13.
14. POST-COMPLETION ARRANGEMENTS
14.1 The Buyer undertakes to the Sellers that it shall, and shall procure that each member of the Buyer’s Group shall:
(a) permit and allow, upon reasonable notice and during normal business hours, any Seller (or the employees, agents and professional advisers of any Seller) access to relevant personnel, all books, records and documents of or relating to the Taxation, legal, or regulatory affairs of the InfraCo Business and each Group Company as at Completion (“Historic Records”) and the right to inspect (and, at the relevant Sellers’ expense, take copies of) the same but solely to the extent that the relevant Seller reasonably requires access to such Historic Records for the purposes of: (i) completing any tax returns or other Tax filings including but not limited to the Pre-Completion Tax Returns and Pre-Completion Tax Documents (each as defined below); (ii) agreeing any tax returns or other Tax filings, including but not limited to the Pre-Completion Tax Returns and Pre-Completion Tax Documents, with the relevant Taxation Authority; or (iii) responding to any claim, notice, demand, assessment, letter, determination or other document issued or action taken by or on behalf of a Taxation Authority, or any other person, (as “Tax Assessment”) from which it appears that a Seller or any member of the Sellers’ Group is, or may become, subject to Tax; or (iv) complying with any applicable law or regulation or the requirements of any judicial or regulatory authority or recognised investment exchange, including but not limited to, in connection with any regulatory process, proceedings, enquiry and/or investigations (“Legitimate Purpose”); and
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(b) give such information, access to personnel and other reasonable assistance as may be reasonably required by any Seller to agree or for the purposes of such Seller’s relevant tax returns, tax filings or any Tax Assessment, dispute with the relevant Taxation Authority or any Legitimate Purpose,
provided that any such Historic Records and information may, at the reasonable election of the Buyer, be redacted in respect of any information reasonably deemed to be commercially sensitive.
14.2 Each Seller undertakes to the Buyer in respect of itself and each member of the Sellers’ Group on the terms of clause 14.1 mutatis mutandis as if references therein to “a Seller” or “any Seller” were references to “a Buyer” or “any Buyer” and as if references therein to “each Group Company” were references to “each member of the Sellers’ Group” and as if references therein to “InfraCo Business” were references to “RemainCo Business”.
14.3 On or prior to Completion, the Sellers shall obtain on behalf of the Group and fully pay for, at the Sellers’ expense and at no expense to the beneficiaries, non-cancellable “tail” insurance policies with a claims period for at least six (6) years (the “D&O Tail Policy”) from and after Completion from insurance carriers with the same or better claims paying ability ratings as the Group’s current insurance carriers with respect to directors’ and officers’ liability insurance policies and fiduciary liability insurance policies (together, the “D&O Insurance”), for the persons who are or were prior to Completion covered by the Group’s existing D&O Insurance (“Existing D&O Insurance”), with terms, conditions, retentions and levels of coverage at least as favourable as the Group’s existing D&O Insurance with respect to matters existing or occurring at or prior to Completion (including in connection with this Agreement or the Transaction). The Buyer undertakes to the Sellers that it shall not take or omit to take (and shall procure that each member of the Buyer’s Group shall not take or omit to take) any action which has the effect of invalidating the D&O Tail Policy.
14.4 Save for any rights under the Sellers’ Tax Insurance Policies, the Buyer acknowledges and agrees that as from the Completion Date all insurance cover provided in relation to or for the benefit of the Group Companies shall be terminated or shall no longer provide coverage to the Group Companies, and no third party shall have any liability or responsibility under such policies after the Completion Date, provided that the Group Companies shall be entitled to the proceeds of claims already made prior to Completion in relation to the InfraCo Business in relation to events that (i) have occurred prior to the Completion Date and (ii) in relation to events that have occurred prior to the Completion Date in relation to the InfraCo Business in respect of which a claim may be made under an “occurrence based” insurance policy and which is notified by the Buyer to the Seller’s Representative after Completion, the Sellers shall (to the extent permitted under the relevant policy and applicable law) permit that Group Company to pursue such claim and the Sellers shall procure that any monies actually received by the Sellers’ Group (and not paid to a Group Company or the Buyer Group by the relevant insurer) in respect of such claim (less any reasonable out of pocket expenses incurred by the Sellers’ Group in connection with such claim) are paid to that Group Company as soon as practicable after receipt; provided that the Sellers’ Group shall not be required to pay any money or assume any obligation in connection with the foregoing.
14.5 On Completion, the Sellers shall obtain on behalf of the Sellers’ Group and fully pay for, at the Sellers’ expense and at no expense to the beneficiaries, directors’ and officers’ liability insurance policies and fiduciary liability insurance policies (together, the “GTT D&O Insurance”), for InfraCo Employees who were prior to Completion covered by the Existing D&O Insurance, with terms, conditions, retentions and levels of coverage at least as favourable as the Existing D&O Insurance with respect to matters existing or occurring at or prior to Completion (including in connection with this Agreement or the Transaction) and with no exclusions relating to any InfraCo Employee. The Sellers undertake to the Buyer that they shall not take or omit to take (and shall procure that each member of the Sellers’ Group shall not take or omit to take) any action which has the effect of invalidating the GTT D&O Insurance.
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15. EMPLOYEES
15.1 From the date of this Agreement, Schedule 16 shall apply, and the Sellers shall procure that the relevant members of the Sellers’ Group and, to the extent that the provisions apply before Completion, the Group Companies, observe and perform those provisions of Schedule 16 as are expressed to be observed and performed by them.
15.2 In the event that the Buyer determines (acting reasonably) that there are reasonable grounds to consider that any of the Agreed Officers are involved or implicated in any misconduct in relation to the maintenance of inaccurate books/records, insufficient accounting control or other forms of accounting misconduct or in respect of any alleged illegality arising out of or in connection with the Q2 Report, the Q2 Audit or the matters to which the Q2 Audit relates, then:
(a) if the above applies before Completion, the Sellers shall, if the Buyer so requests by giving Notice:
(i) either:
(A) if the relevant individual is an InfraCo Group Company Employee, procure that such relevant individual is treated as a RemainCo Employee for the purposes of Schedule 16; or
(B) if the relevant individual is an InfraCo Non-Group Company Employee, cease to treat such individual as an InfraCo Non-Group Company Employee and accordingly paragraph 1 of Part B of Schedule 16 shall not apply and the Sellers shall procure that the individual does not transfer to a Group Company; and
(ii) in the case of both (i)(A) and (i)(B) above, paragraph 9 of Schedule 16 shall apply in respect of each InfraCo Employee vacancy arising as a consequence of the above; or
(b) if the above applies after Completion (or before Completion but the Sellers have not complied with their obligations under (a) above prior to Completion or the Buyer have not given Notice before Completion under (a) above), the Buyer may procure that the relevant individual is no longer employed or engaged by a Group Company.
15.3 For the purpose facilitating the matters contemplated in clause 15.2, the Sellers agree to delay, so far as possible and subject at all times to applicable law, any action required to be taken under Schedule 16 in respect of the individuals referred to in clause 15.2 so that such actions take place as close as possible to the Completion Date.
15.4 In the case of both clauses 15.2(a) and 15.2(b), the Sellers shall be responsible for, and shall indemnify the Buyer and each member of the Buyer’s Group (including, after Completion, any Group Company) against, any liabilities, losses, costs, expenses, demands or sums:
(a) arising out of or in connection with the termination of the relevant individual’s employment or the relevant individual transferring to a RemainCo Company or not transferring to a Group Company (as applicable) (including all amounts referred to in paragraphs 12 and 13 of Schedule 16 in respect of such individual); and
(b) payable to or in relation to the relevant individual under their contract of employment to the date of termination of the relevant individual’s employment (if applicable) (whether before or after Completion and including all amounts referred to in paragraphs 12 and 13 of Schedule 16).
15.5 In the event of any inconsistency, clauses 15.2, 15.3 and 15.4 shall prevail over Schedule 16.
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15.6 Provided the Buyer gives Notice to the Sellers at least twenty (20) Business Days prior to Completion, the Sellers shall procure that the individuals listed as directors of the Group Companies in Schedule 2 are removed and replaced at Completion, in accordance with the Buyer’s directions.
16. TAX FILINGS AND ELECTIONS
16.1 The Sellers, or their duly authorised agents, shall until Completion, in respect of all accounting periods of any Group Company ending on or before Completion (each a “Pre-Completion Tax Period”), at the relevant Group Company’s cost, use reasonable endeavours to:
(a) prepare the Tax returns and computations of the Group Company to the extent that they relate to a Pre-Completion Tax Period (the “Pre-Completion Tax Returns”) and deliver each such Pre-Completion Tax Return to the Buyer at least fifteen (15) Business Days prior to the due date for its submission to the relevant Taxation Authority or, if the due date has passed prior to the date of this Agreement, as soon as reasonably practicable thereafter; and
(b) prepare on behalf of each such Group Company, as relevant, all claims, elections, surrenders, disclaimers, notices and consents to the extent that these have been assumed in the preparation of the Accounts, the Completion Balance Sheet or Completion Statement and, until Completion and subject to paragraph 10 of Part 1 of Schedule 6 and paragraph 9 of Part 2 of Schedule 6, deal with all matters relating to the Pre-Completion Tax Returns, including any correspondence or negotiations (the “Pre-Completion Tax Documents”) and deliver all Pre-Completion Tax Documents to the Buyer at least fifteen (15) Business Days prior to the date such Pre-Completion Tax Documents are required to be submitted to the relevant Taxation Authority or, if such date has passed prior to the date of this Agreement, as soon as reasonably practicable thereafter.
16.2 Unless the parties agree in writing otherwise, to the extent that, following Completion, any of the Pre-Completion Tax Returns or Pre-Completion Tax Documents have not been prepared and/or delivered to the Buyer in accordance with clause 16.1 (each a “Delayed Pre-Completion Tax Return” or “Delayed Pre-Completion Tax Document”, as the case may be), the parties shall treat each such Delayed Pre-Completion Tax Returns and Delayed Pre-Completion Tax Documents as if they were tax returns (or other documents) arising from a Straddle Period, such that clause 16.5 will apply to such returns and documents, save that the reasonable fees properly incurred in good faith by the Buyer or Group Company (as applicable) with respect to the preparation, etc. of any such Delayed Pre-Completion Tax Return or Delayed Pre-Completion Tax Document shall be paid by the Sellers within thirty (30) days of Seller’s receipt of an invoice from the Buyer or Buyer’s agent.
16.3 Subject to clause 16.5, the Buyer shall, or shall procure that the relevant Group Company shall, authorise, sign and submit to the relevant Taxation Authority any Pre-Completion Tax Return or Pre-Completion Tax Document without amendment or with such amendments as the Buyer may reasonably require and agree with the Sellers, or their duly authorised agents, in writing prior to submission.
16.4 The Sellers shall until Completion procure that:
(a) the Buyer is kept fully informed of the progress of all material matters relating to the Taxation affairs of the Group Companies in relation to the Pre-Completion Tax Periods;
(b) the Buyer receives copies of, or extracts from, all material written correspondence to, or from, any Taxation Authority insofar as it is relevant to the matters referred to in clause 16.4(a) above; and
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(c) the Buyer is consulted fully in relation to the matter referred to in clause 16.4(a) above and any reasonable comments of the Buyer or its duly authorised agent are taken into account in relation to such matters.
16.5 The Buyer, or its duly authorised agents, shall from Completion, in respect of a Straddle Period, at the relevant Group Company’s cost and expense, use reasonable endeavours to:
(a) prepare the Tax returns and computations of the relevant Group Company (insofar as they relate to the part of the Straddle Period prior to Completion) in a manner that:
(i) in relation to transfer pricing, is consistent with the Group’s transfer pricing methodology as at Completion; and
(ii) in relation to all matters other than transfer pricing, is consistent with past practice insofar as it might reasonably be expected to materially affect the liability to Tax of the Sellers’ Group or the liability of the Sellers under this Agreement (and save to the extent required by law or generally accepted accounting practice applicable to a Group Company at Completion),
provided that no Group Company shall be required to adopt any position in such a Tax return or computation to the extent the Buyer considers, in its reasonable opinion, such position to be false, misleading or inaccurate in any material respect;
(b) deliver all such returns and computations to the Sellers as soon as practicable and, in any case, at least fifteen (15) Business Days prior to their submission to the relevant Taxation Authority;
(c) promptly submit such returns and computations to the relevant Taxation Authority after taking into account all reasonable comments of the Sellers, or their duly authorised agent, in respect of the part of the Straddle Period prior to Completion or which otherwise relate to matters which could affect the Sellers’ liability under this Agreement received at least five (5) Business Days prior to the submission of such return or computation; and
(d) deal with all matters relating to the Straddle Period returns including the conduct of all related negotiations and correspondence with the relevant Taxation Authority, provided that it shall keep the Sellers fully and promptly informed of all material matters relating to the Straddle Period returns or negotiations insofar as they relate to the part of the Straddle Period prior to Completion or otherwise relate to matters which could affect the Sellers’ liability under this Agreement and will provide the Sellers with:
(i) copies of all relevant correspondence and documentation relating to all such matters; and
(ii) copies of all relevant documents in the Buyer’s or the relevant Group Company’s possession or control in relation to that matter.
16.6 The Buyer agrees that it shall not, and shall procure that no person shall, make any claim, election, surrender, disclaimer, notice or consent with respect to any Group Company in connection with the transactions effected and/or contemplated by to this Agreement without the prior written agreement of the Sellers (not to be unreasonably delayed or withheld), including but not limited to an election pursuant to section 338(g) of the Code with respect to any Group Company which is a non U.S. corporation within the meaning of Section 7701(a)(5) of the Code
16.7 The Sellers agree to use reasonable commercial efforts to:
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(a) cooperate with the Buyer in providing information in respect of the Group in respect ofany Pre-Completion Tax Period or Straddle Period, that is not in the possession of the Group at Completion, and that is necessary for completing and finalising any tax returns or dealing with the Tax affairs of the Group, the Buyer or its Affiliates in respect of a Pre-Completion Tax Period or the Straddle Period; and
16.8 provide the Buyer with such reasonable assistance as may be required to enable the Buyer to discharge its obligations or exercise its rights in respect of the Delayed Pre-Closing Tax Returns and Delayed Pre-Closing Tax Documents.
17. TAX
The provisions of Schedule 20 shall take effect from Completion, subject to the exclusions, limitations and qualifications set out therein.
18. SELLERS’ REPRESENTATIVE
18.1 Each Seller hereby appoints the Principal Seller to be the Sellers’ representative (the “Sellers’ Representative”) and authorises it to take all such action as this Agreement expressly provides to be taken by the Sellers’ Representative, including to receive Notices on behalf of each Seller.
18.2 The Sellers may jointly at any time appoint a different person to act as the Sellers’ Representative and the Sellers’ Representative may elect no longer to act as such, provided that in each such case, the Sellers jointly appoint a replacement and give written notice to the Buyer within five (5) Business Days of such new appointment.
19. ASSIGNMENT
19.1 Subject to clause 2.3 and 19.2, no party shall be entitled to assign, transfer, charge, sub-contract, delegate, create any trust or otherwise deal with the benefit or burden of any provision of this Agreement without the prior written consent of (i) in the case of an assignment by a Seller, the Buyer and (ii) in the case of an assignment by the Buyer, the Sellers’ Representative.
19.2 This Agreement and the benefits arising under it may (by giving written notice to each other party) be assigned and, in the case of clauses (b) and (d) of this paragraph 19.2, charged or made subject to a trust, in whole or in part by:
(a) any Sellers to any member of the Sellers’ Group (provided that if such assignee ceases to be a member of the Sellers’ Group, the Sellers shall procure that this Agreement and the benefits arising under it are assigned back to the Sellers or another member of the Sellers’ Group immediately prior to such cessation);
(b) (i) the Buyer to lending or hedging institutions or other creditors or any member of their respective groups (including funds and hedge counterparties) or any security agent or trustee acting on their behalf as security agent, in each case for any financing, syndication or refinancing in respect of the Transaction (including any additional facilities and hedging made available in connection with such financing, syndication or refinancing) and (ii) also to any other financial or hedging institution or other creditors by way of security for the borrowings of the Buyer resulting from any refinancing of the borrowings made under (i) above or to any person entitled to enforce such security or to any transferee under a valid enforcement of such security, but so that, in the case of both (i) and (ii) above and notwithstanding any such assignment(s), the Sellers may, unless they receive written notice of enforcement of the relevant security interest, deal with the Buyer in connection with all matters arising under this Agreement;
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(c) the Buyer to any member of the Buyer’s Group to whom that Buyer transfers any of the Shares (provided that if such assignee ceases to be a member of the Buyer’s Group, that Buyer shall procure that this Agreement and the benefits arising under it are assigned back to that Buyer or another member of the Buyer’s Group immediately prior to such cessation); and
(d) any Seller to a financial institution as security where (and only to the extent) it is required to provide such security under the GTT Third Party Debt Arrangements,
in each case, provided that (i) the liability of any party to such assignee shall be no greater, nor more likely, than it would have been had such assignment not taken place, (ii) the assignee, chargee or trustee is not (A) the subject of any actual, threatened or reasonably antiticipated insolvency or similar proceedings or (B) a Sanctioned Person, and (iii) all the rights, benefits and protections afforded to a party shall continue to apply to the benefit of that party as against the assignee as they would have applied as against the assignor.
19.3 Any purported assignment, transfer, charging, sub-contracting, delegation, declaration of trust or dealing in contravention of this clause 19 shall be ineffective.
20. COSTS AND EXPENSES
20.1 Except as otherwise provided for in this Agreement, each of the parties shall pay its own costs and expenses in relation to the negotiation, preparation, execution, performance and implementation of this Agreement and each other Transaction Document, save that this clause shall not prejudice the right of any party to seek to recover its costs in any litigation or dispute resolution procedure which may arise out of this Agreement or another Transaction Document.
20.2 The Buyer shall bear all stamp duties, stamp duty land tax, notarial fees, sales taxes, transfer taxes or other similar Taxes (“Transfer Taxes”) payable as a result of the transactions contemplated by this Agreement (other than Transfer Taxes incurred in respect of the Reorganisation, which shall be the responsibility of the Sellers), and shall be solely responsible for arranging the payment of any such Transfer Taxes.
20.3 Subject to clause 20.4, the Sellers’ Group shall bear all the costs and expenses incurred (whether incurred prior to or following Completion) in connection with the implementation and completion of the Reorganisation and for the avoidance of doubt this shall include, but not be limited to, all the costs and expenses incurred by the Group Companies, the InfraCo Business, the Buyer and the Buyer’s Group in connection with the Reorganisation.
20.4 The Sellers shall bear all costs and expenses incurred (whether incurred prior to or following Completion) in connection with the implementation and completion of the CMD Milestone and the Future System Milestone (including, for the avoidance of doubt, all costs and expenses in connection with the Infosys Contracts to the extent not already taken into account in the Completion Statements, including in the Completion Working Capital). The Buyer and the Group Companies shall bear their own incidental out-of-pocket costs and expenses associated with the implementation and completion of the CMD Milestone and the Future System Milestone.
21. PAYMENTS AND NO SET-OFF
21.1 Save as otherwise set out in this Agreement (including in Schedule 23), all payments to be made under this Agreement shall be made in full without any set-off or counterclaim and free from any deduction or withholding, save as may be required by law, in which event such deduction or withholding shall not exceed the minimum amount which it is required by law to deduct or withhold.
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21.2 If a payor is required to deduct or withhold any amount of or in respect of Tax from any payment under this Agreement, other than the payment of any amount of Consideration for the purchase of the Shares by the Buyer, the amount to be paid to the payee by the payor shall be increased to such amount as will ensure that the net amount received by the payee after such deduction or withholding has been taken into account is equal to the full amount which would have been received and retained by the payee had the amount not been subject to deduction or withholding and any amounts withheld (including any amounts in respect of the Consideration) shall be the minimum required by law and shall be remitted by the payor to the relevant Taxation Authority within the relevant time limits.
21.3 Clause 21.2 shall not apply to the extent that the deduction or withholding would not have arisen but for the payee being tax resident elsewhere than its jurisdiction of incorporation or an assignment by the payee of its rights under this Agreement.
21.4 The Buyer shall act in good faith to determine the amount due to be withheld from the Consideration (if any) and shall notify the Sellers of the amount proposed to be withheld at least twenty (20) Business Days prior to any such withholding. The Buyer and Sellers shall use reasonable commercial efforts to agree the amount of any such withholding. The Buyer shall provide the Principal Seller with any documentation, evidence or other information reasonably required by the Sellers in connection with any refund, tax or other recovery of any amounts so withheld.
21.5 If any sum payable by the Sellers to the Buyer under this Agreement will be subject to Tax in the hands of the Buyer, the amount payable will be increased so as to ensure that the net amount retained by the Buyer after taking such Taxation into account (and after taking into account the timing and value of any Relief the Buyer may obtain as a result of the matter giving rise to the payment) is equal to the full amount which would have been retained but for such Taxation.
21.6 Where under the terms of this Agreement one party is liable to indemnify or reimburse another party in respect of any costs, charges or expenses, the payment shall include an amount equal to any VAT thereon not otherwise recoverable by the other party or the representative member of any VAT group of which it forms part.
21.7 If any payment under this Agreement constitutes the consideration for a taxable supply for VAT purposes, then (i) the recipient shall provide to the payer a valid VAT invoice, and (ii) except where the reverse charge procedure applies, and subject to the provision of a valid VAT invoice in accordance with (i), in addition to that payment the payer shall pay to the recipient any VAT due.
22. VARIATIONS AND WAIVERS
22.1 No variation of this Agreement shall be effective unless made in writing signed by or on behalf of all the parties and expressed to be such a variation.
22.2 A waiver of any right, power, privilege or remedy provided by this Agreement must be in writing and may be given subject to any conditions thought fit by the grantor. For the avoidance of doubt, any omission to exercise, or delay in exercising, any right, power, privilege or remedy provided by this Agreement shall not constitute a waiver of that or any other right, power, privilege or remedy.
22.3 A waiver of any right, power, privilege or remedy provided by this Agreement shall not constitute a waiver of any other breach or default by the other party and shall not constitute a continuing waiver of the right, power, privilege or remedy waived or a waiver of any other right, power, privilege or remedy.
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22.4 Any single or partial exercise of any right, power, privilege or remedy arising under this Agreement shall not preclude or impair any other or further exercise of that or any other right, power, privilege or remedy.
23. SEVERANCE
23.1 If any provision of this Agreement is held to be invalid or unenforceable by any judicial or other competent authority, all other provisions of this Agreement will remain in full force and effect and will not in any way be impaired.
23.2 If any provision of this Agreement is held to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted or amended, the provision in question will apply with the minimum modifications necessary to make it valid and enforceable.
24. REMEDIES
24.1 Each of the parties acknowledges and irrevocably agrees that it will not be entitled to rescind, terminate or repudiate this Agreement for any reason other than pursuant to clause 7, clause 4.24 or clause 5.
24.2 Each of the parties acknowledges and agrees that it shall not have a claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement. All Claims, Reorganisation Indemnity Claims and Tax Covenant Claims shall be subject to the provisions and limitations in Part 1 of Schedule 6 (to the extent applicable).
24.3 Nothing in this Agreement shall limit or exclude the liability of any party to the extent such liability arises or is increased as a result of fraud on the part of that party.
25. JOINT AND SEVERAL LIABILITY OF SELLERS
Except where this Agreement expressly provides otherwise, obligations, covenants, warranties, representations and undertakings expressed to be assumed or given by two or more Sellers shall in each case be construed as if expressed to be given jointly and severally (and not severally).
26. ENTIRE AGREEMENT
26.1 Except as otherwise agreed in writing between the parties, this Agreement and the other Transaction Documents constitute the entire agreement between the parties relating to the Transaction and they supersede and extinguish any prior discussions, correspondence, drafts, agreements, undertakings, representations, warranties and arrangements of any nature whatsoever, in each case whether or not in writing, between the parties in relation to the subject matter of the Transaction.
26.2 Each of the parties acknowledges and agrees that:
(a) it has not entered into this Agreement in reliance on any statement, representation, warranty, assurance or undertaking of any person (whether a party to this Agreement or not) other than as expressly incorporated and provided in this Agreement and waives all rights and remedies which, but for this clause 26.2, might otherwise be available to it in respect of any such statement, representation, warranty, assurance or undertaking;
(b) except as expressly provided in this Agreement, it has entered into this Agreement solely in reliance on its own commercial assessment, investigation and advice from its own professional advisers; and
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(c) the other parties have entered into this Agreement in reliance on the acknowledgement given in this clause 26.2.
26.3 Each of the parties acknowledges and agrees that the express terms of this Agreement are in lieu of all warranties, conditions, terms, undertakings and obligations implied by statute, common law or otherwise all of which are hereby excluded to the fullest extent permitted by law.
27. FURTHER ASSURANCE
On request by any party, each party shall, and shall use reasonable endeavours to procure that any necessary third party shall, as soon as reasonably practicable at the requesting party’s cost, do and execute and perform all such further deeds, documents, assurances, acts and things as may reasonably be necessary or desirable to carry this Agreement into effect and give the requesting party the full benefit of it, including any such action reasonably required of the Sellers by the Buyer in connection with any debt financing.
28. THIRD PARTY RIGHTS
28.1 Any member of the Sellers’ Group (in respect of clause 12, clause 10 and clause 13.6) and any member of the Buyer’s Group (in respect of clause 8.12, clause 12 and clause 10), in each case to the extent such clauses benefit those third parties, may enforce the terms of such clauses pursuant to the Contracts (Rights of Third Parties) Xxx 0000.
28.2 Except as provided in clause 28.1, this Agreement does not confer any rights on any person (other than the parties to this Agreement, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Xxx 0000.
28.3 Notwithstanding clause 28.1, the parties may vary this Agreement in accordance with its terms without the consent of or notice to any person on whom such rights are conferred.
29. NOTICES
29.1 Any notice, request, demand or other communication under or in connection with this Agreement (or any notices of assignment in respect of any assignment of this Agreement) (a “Notice”) shall be in writing and in English and may be given by:
(a) hand (including by way of pre-paid delivery by commercial courier);
(b) e-mail;
(c) pre-paid first class recorded mail if posted to an address in the same country as the country of posting; or
(d) pre-paid airmail if posted to an address in a country different to the country of posting,
in each case to the address given below or any other address notified in accordance with clause 29.4.
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| Sellers: | |||||
| GTT Communications, Inc. | (for itself and on behalf of each Seller as Sellers’ Representative) | ||||
| For the attention of: | The General Counsel | ||||
Address: Email | 0000 Xxxxxx Xxx Xxxxx Xxxxx 0000 XxXxxx, XX 00000 Xxxxx@xxx.xxx | ||||
| in each case, | |||||
| with a copy (such copy not constituting Notice) to: | For the attention of Xxxxx Xxxxxxx of Xxxxxxx Procter (UK) LLP, by email to xxxxxxxx@xxxxxxxxxx.xxx | ||||
| with a copy (such copy not constituting Notice) to: | For the attention of Xxx Xxxxxxxxx, Xxxxxx Dublin and Xxxxxx Xxxxxx of Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, by e-mail to xxxxxxxxxx@xxxxxxxx.xxx, xxxxxxx@xxxxxxxx.xxx and xxxxxxx@xxxxxxxx.xxx | ||||
| Buyer: | |||||
| For the attention of: | Mohamed El Gazzar | ||||
Address: Email | 0 Xxxxxxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0XX, Xxxxxx Xxxxxxx Xxxxxxx.Xx.Xxxxxx@xxxxxxxxxxxxxxx.xxx | ||||
| in each case, | |||||
| with a copy (such copy not constituting Notice) to: | I Squared Capital Advisors (US) LLC Address: 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx, XX 00000, XXX Attention: General Counsel Email: xxxxxxxxxxxxxx@xxxxxxxxxxxxxxx.xxx | ||||
| with a copy (such copy not constituting Notice) to: | Linklaters LLP Address: Xxx Xxxx Xxxxxx, Xxxxxx, XX0X 0XX, XX Attention: Xxxx Xxxxxx-Xxxxxx Email: xxxx.xxxxxx-xxxxxx@xxxxxxxxxx.xxx | ||||
29.2 A Notice shall be deemed to have been served:
(a) if delivered by hand, at the time of delivery;
(b) if sent by pre-paid first class recorded mail, on the second Business Day after (and excluding) the day of posting;
(c) if sent by pre-paid airmail, on the fifth Business Day after (and excluding) the day of posting; or
(d) if sent by email to the email address specified in that clause, on the date of transmission, if transmitted before 3:00 pm (local time at the place of destination) on any Business Day and in any other case on the Business Day following the date of transmission), provided that a copy of such notice is also delivered in accordance with paragraphs (a), (c) or (d) of clause 29.1 on the date of transmission of the email.
29.3 In proving service of a Notice, it shall be sufficient to show that delivery by hand was made or that the envelope containing the Notice was properly addressed and posted as a first class
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prepaid letter or that the e-mail was successfully transmitted to the correct e-mail address, whether or not opened or read by the recipient.
29.4 A party may notify the other parties to this Agreement of a change to its name, relevant addressee, address or e-mail address for the purposes of clause 29.1, provided that such notification shall only be effective on:
(a) the date specified in the notification as the date on which the change is to take place; or
(b) if no date is specified or the date specified is less than five (5) clear Business Days after the date on which notice is deemed to have been served, the date falling five (5) clear Business Days after notice of any such change is deemed to have been given.
29.5 This clause 29 shall not apply in relation to the service of any proceedings or other documents relating to or in connection with any legal action.
30. PROCESS AGENTS
30.1 If a party does not have, or at any time after the date of this Agreement ceases to have, an address for service of process within the UK, that party (the “Appointing Party”) must:
(a) appoint a person as its agent to accept the service of process in any legal action or proceedings arising out of this Agreement (“Process Agent”); and
(b) notify the other parties in writing within five (5) Business Days of the date of appointment.
30.2 The Appointing Party must notify the other parties in writing of any change of address of any Process Agent appointed by them within ten (10) Business Days of the date of the change.
30.3 If any Process Agent which has been appointed pursuant to clause 30.1 ceases to be able to act or ceases to have an address within the UK, the Appointing Party must appoint a new Process Agent and notify the other parties in writing within five (5) Business Days of the date of appointment.
30.4 The Process Agent for the following Sellers: GTT Holdings Ireland, NGS Limited and the Principal Seller is GTT Holdings.
31. INCONSISTENCY
If there is any inconsistency between the provisions of this Agreement and those of any other Transaction Document, the provisions of this Agreement shall prevail.
32. COUNTERPARTS
32.1 This Agreement may be executed in any number of counterparts, but shall not be effective until each party has signed at least one counterpart. Each counterpart constitutes an original, and all the counterparts together constitute one and the same agreement.
32.2 Transmission of an executed counterpart of this Agreement by email (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed counterpart of this Agreement.
33. GOVERNING LANGUAGE
If this Agreement or any Notice given by one party to another is translated into any language other than English, the English text shall prevail in any event.
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34. GOVERNING LAW AND JURISDICTION
34.1 This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
34.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
IN WITNESS whereof this Agreement has been executed by the parties on the date at the beginning of this Agreement.
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SCHEDULE 1
The Shares and Form of Purchase Price Allocation
The Shares and Form of Purchase Price Allocation
| (1) The Sellers | (2) The Shares | (3) The Base Purchase Price | |||||||||
| € | US$ | ||||||||||
| GTT Holdings Ireland | GTT Ireland Shares 2 | [ ] | [ ] | ||||||||
| NGS Limited | GTT Ireland Shares 1 | [ ] | [ ] | ||||||||
| Hibernia Atlantic Communications (Canada) Company Shares | [ ] | [ ] | |||||||||
| Hibernia Atlantic Cable System Limited Shares | [ ] | [ ] | |||||||||
| Hibernia Atlantic (Singapore) Private Limited Share | [ ] | [ ] | |||||||||
| Hibernia Atlantic (UK) Limited Shares | [ ] | [ ] | |||||||||
| Hibernia Media (UK) Limited Shares | [ ] | [ ] | |||||||||
| Hoffnungsvoll Communication Private Limited | [ ] | [ ] | |||||||||
| GTT Holdings | GTT UK Shares | [ ] | [ ] | ||||||||
| GTT Americas | GTT US Shares | [ ] | [ ] | ||||||||
| TOTAL | [ ] | [ ] | |||||||||
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SCHEDULE 2
Group Companies
Group Companies
Part 1: The Target Companies
| Company name: | Hibernia Atlantic Communications (Canada) Company | ||||
| Registered number: | 3070087 | ||||
| Date of incorporation: | 00 Xxxxxx 0000 | ||||
| Xxxxx xx xxxxxxxxxxxxx: | Xxxx Xxxxxx, Xxxxxx | ||||
| Registered office: | 1300 – 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx’s Xxxxx Xxxxx XX, Xxxxxxx, XX Xxxxxx X0X 0X0 | ||||
| Issued share capital (including premium): | 1,209 ordinary shares having no par value | ||||
| Directors: | Name: | ||||
| Xxxxxxx Xxxxxx | |||||
| Xxxxxx Xxxxxx | |||||
| Xxxxxxx Xxxxxxx | |||||
| Secretary | Xxxxxxx Xxxxxxx | ||||
| Company name: | Hibernia Atlantic Cable System Limited | ||||
| Registered number: | 361356 | ||||
| Date of incorporation: | 11 September 2002 | ||||
| Place of incorporation: | Ireland | ||||
| Registered office: | The Exchange, George’s Dock, I.F.S.C., Dublin 1,D01 P2V6 | ||||
| Issued share capital (including premium): | 19,830,272 ordinary shares of €1.00 each | ||||
| Directors: | Name: | ||||
| Xxxxxx Xxxx | |||||
| Xxxxxxx Xxxxxx | |||||
| Xxxxxx Xxxxxx | |||||
| Xxxxxxx Xxxxxxx | |||||
| Secretary | Xxxxxxx Xxxxxxx | ||||
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| Company name: | Hibernia Atlantic (Singapore) Private Limited | ||||
| Registered number: | 201112441W | ||||
| Date of incorporation: | 25 May 2011 | ||||
| Place of incorporation: | Singapore | ||||
| Registered office: | 00 Xxxxxxx Xxxx, #00-00 Xxxxx Xxxxxxxxx Xxxxxx Xxxxxxxxx 000000 | ||||
| Issued share capital (including premium): | 1 share of USD 1.00 | ||||
| Directors: | Name: | ||||
| Xxxxxxx Xxxx Xxxxxxx | |||||
| Xxxxxx XxxXxxxxxx Xxxxxx | |||||
| Xxxxxxx Xxxxxx | |||||
| Xxxxxx Au Xxxx Xxxx | |||||
| Secretary | Xxxxxx Au Xxxx Xxxx | ||||
| Company name: | Hibernia Atlantic (UK) Limited | ||||
| Registered number: | 04513136 | ||||
| Date of incorporation: | 16 August 2002 | ||||
| Place of incorporation: | England & Wales | ||||
| Registered office: | Xxxxxx Xxxxx, Xxx, Xxxxxx Xxxx, Xxxxxx, Xxxxxxx, XX0X 0XX | ||||
| Issued share capital (including premium): | 2,020,408 shares of £1.00 each | ||||
| Directors: | Name: | ||||
Xxxxxx Xxxxxxxxxx Xxxxxx | |||||
| Xxxxxxx Xxxxxx | |||||
| Xxxxxxx Xxxx Xxxxxxx | |||||
| Secretary | York Place Company Secretaries Limited | ||||
| Company name: | Hibernia Express (Ireland) Limited | ||||
| Registered number: | 515098 | ||||
| Date of incorporation: | 5 July 2012 | ||||
| Place of incorporation: | Ireland | ||||
| Registered office: | |||||