srt20210224_8k.htm
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
 
FORM 8-K
 
CURRENT REPORT
 
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
 
Date of Report (Date of earliest event reported): February 18, 2021
 
Startek, Inc.
(Exact name of registrant as specified in charter)
 
 
Delaware
1-12793
  84-1370538
(State or Other Jurisdiction
of Incorporation)
(Commission File Number)
(IRS Employer
Identification No.)
 
 
Carrara Place
4th Floor Suite 485
6200 South Syracuse Way
Greenwood Village, Colorado 80111
 (Address of Principal Executive Offices) (Zip Code)
 
(303) 262-4500
 (Registrant’s telephone number, including area code)
 
 
(Former name, former address and former fiscal year, if changed since last report)
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
 
  Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
  Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
Securities registered pursuant to Section 12(b) of the Act:
 
Title of each class
Trading Symbol(s)
Name of each exchange on which registered
Common Stock, $0.01 par value
SRT
New York Stock Exchange, Inc.
 
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). Emerging growth company
 
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
 
 

 
Item 1.01
Entry into a Material Agreement
 
On February 18, 2021 Startek, Inc. (“Startek”) entered into a Facilities Agreement, dated February 18, 2021 (the “Facilities Agreement”), by and among CSP Alpha Midco Pte. Ltd., CSP Alpha Holdings Pte. Ltd. (the “Company”), Startek., Aegis BPO Services Australia, ESM Holdings Limited, Startek Philippines, Inc., Aegis Oursourcing South Africa (Pty) Ltd., the lenders party thereto, DBS Bank, Ltd. and ING Bank N.V., Singapore Branch as the mandated lead arrangers and bookrunners, Madison Pacific Trust Limited, as agent and security agent and DBS Bank Ltd., as the secondary security agent.
 
The Facilities Agreement provides for a US$165 million term loan facility and a US$20 million revolving credit facility, in each case with a maturity date 60 months after the date of first utilization of the term loan facility. The availability period for the term loan facility is 30 days after the date of the Facilities Agreement. The Facilities Agreement also contains an accordion feature to increase the term loan facility by $30 million, subject to certain conditions. The term loan facility amortizes 2.5% on the date that is 21, and 24 months from closing, 3.75% on the date that is 27, 30, 33 and 36 months from closing, 5.0% on the date that is 39, 42, 45, 48 and 51 months from closing, 10% on the date that is 54 months from closing and 15% on the date that is 57 months from closing. The Facilities Agreement also contain certain mandatory repayment provisions, including with respect to disposition proceeds, insurance proceeds, excess cash flow, and certain investments of the Company.   
  
Under the Facilities Agreement and subject to the terms thereunder, Startek guarantees payment of, and performance by the Company and its affiliates party to the Facilities Agreement of, all obligations of the Company and such affiliates under the Facilities Agreement and related finance documents.
 
The term loan facility and the revolving loan facility each bear interest at a rate per annum equal to a LIBOR rate plus an applicable margin of between 3.75% and 4.50%, depending on an adjusted leverage ratio. The Facilities Agreement also contains a commitment fee on the available amount of the term loan facility and the revolving credit facilities, each equal to 35% of the then margin.
 
The Facilities Agreement contains various negative covenants that, subject to certain limitations, thresholds and exceptions, limit Startek and other restricted subsidiaries of the Company to (among other restrictions): incur indebtedness; grant liens; pay dividends and make subsidiary and certain other distributions; sell assets; make investments; enter into transactions with affiliates; and make certain modifications to material documents (including organizational documents). The Facilities Agreement also contains financial covenants, including cash flow cover, adjusted leverage and limitations on capital expenditures. Each of the cash flow cover and adjusted leverage financial covenants are subject to equity cure provisions.
 
The Facilities Agreement also contains customary representations and warranties, affirmative covenants and events of default. If an event of default occurs under the Facilities Agreement, then the agent may, or a majority of the lenders through the agent may, (a) declare the loans under the Facilities Agreement to be immediately due and payable and/or (b) foreclose on the collateral securing the obligations under the Facilities Agreement.
 
The foregoing description of the Facilities Agreement is not intended to be complete and is qualified in its entirety by reference to the full text of the Facilities Agreement, a copy of which is filed as Exhibit 10.1 hereto and incorporated by reference herein.
 
A copy of the press release announcing the entry into the Facilities Agreement is attached hereto as Exhibit 99.1 and incorporated herein by reference.
 
Item 1.02
Termination of a Material Definitive Agreement
 
On February 18, 2021, the Company used proceeds from the Facilities Agreement to prepay and terminate the credit facility made available to it under that certain Amended and Restated Senior Term and Revolving Facilities Agreement, dated October 27, 2017 by and among the Company, DBS Bank LTD, as agent and secondary security agent, Madison Pacific Trust Limited, as security agent, and the guarantor parties thereto.
 
 

 
Item 2.03
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
 
The information under Item 1.01 is incorporated by reference herein.
 
Item 9.01
Financial Statements and Exhibits
 
Exhibit
Number
 
Description
10.1
 
99.1
 
 104
 
Cover Page Interactive Data File (embedded within the Inline XBRL document).
 
 

 
SIGNATURES
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
 
 
STARTEK, INC.
 
 
 
 
Date: February 24, 2021
By:
 /s/ Aparup Sengupta
 
 
 Aparup Sengupta
 
 
 Global Chief Executive Officer
 
 
 
 
 
ex_229728.htm

Exhibit 10.1

 

CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS AGREEMENT BECAUSE IT IS NOT MATERIAL AND WOULD LIKELY CAUSE COMPETITIVE HARM TO THE REGISTRANT IF PUBLICLY DISCLOSED. [***] INDICATES THAT INFORMATION HAS BEEN REDACTED.

 

 

 

EXECUTION VERSION

 

 

 

FACILITIES AGREEMENT

 

 

DATED 18 FEBRUARY 2021

 

 

SENIOR TERM AND REVOLVING FACILITIES AGREEMENT

 

for

 

CSP ALPHA HOLDINGS PTE. LTD.

 

arranged by

 

DBS BANK LTD. AND ING BANK N.V., SINGAPORE BRANCH

as Mandated Lead Arrangers and Bookrunners

 

with

 

MADISON PACIFIC TRUST LIMITED

acting as Agent

 

and

 

MADISON PACIFIC TRUST LIMITED

acting as the Security Agent

 

and

 

DBS BANK LTD.

acting as the Secondary Security Agent

 

 

 

 

 

https://cdn.kscope.io/4d531b21336fa349e4f4aeeee57dac1c-ex_229728img001.gif

 

Allen & Overy LLP

 

0101828-0000015 SNO1: 2001371837.19

 

 

 

 

 

CONTENTS

 

Clause

 

Page

     

1.

Definitions and Interpretation  

2.

The Facilities  

3.

Purpose  

4.

Conditions of Utilisation  

5.

Utilisation  

6.

Repayment  

7.

Illegality, Voluntary Prepayment and Cancellation  

8.

Mandatory Prepayment and Cancellation  

9.

Restrictions  

10.

Interest  

11.

Interest Periods  

12.

Changes to the Calculation of Interest  

13.

Fees  

14.

Tax Gross Up and Indemnities  

15.

Increased Costs  

16.

Other Indemnities  

17.

Mitigation by the Lenders  

18.

Costs and Expenses  

19.

Guarantee and Indemnity  

20.

Representations  

21.

Information Undertakings  

22.

Financial Covenants  

23.

General Undertakings  

24.

Accounts  

25.

Events of Default  

26.

Hedge Counterparties  

27.

Changes to the Lenders  

28.

Restriction on Debt Purchase Transactions  

29.

Changes to the Obligors  

30.

Role of the Agent, the MLABs and Others  

31.

Enforcement of Transaction Security  

32.

Application of Proceeds  

33.

The Security Agent  

34.

Change of Security Agent and Delegation  

35.

Effect of Insolvency Event  

36.

Turnover of Receipts  

37.

Information  

38.

Conduct of Business by the Finance Parties  

39.

Sharing among the Finance Parties  

40.

Payment Mechanics  

41.

Set-Off  

42.

Notices  

43.

Calculations and Certificates  

44.

Partial Invalidity  

45.

Remedies and Waivers  

46.

Amendments and Waivers  

47.

Confidentiality  

48.

Contractual Recognition of Bail-In  

49.

Counterparts  

50.

Governing Law  

51.

Enforcement  

52.

USA PATRIOT Act  

53.

Acknowledgement regarding any Supported QFCs  

 

 

 

Schedule

 
       

1.                   

The Original Parties  

 

Part 1

The Original Guarantors

 

 

Part 2

The Original Lenders

 

2.                   

Conditions Precedent and Conditions Subsequent  

 

Part 1

Conditions Precedent (Utilisation)

 

 

Part 2

Conditions Subsequent (Phase 1)

 

 

Part 3

Conditions Subsequent (Phase 2)

 

 

Part 4

Conditions Subsequent (Phase 3)

 

 

Part 5

Conditions Precedent Required to be Delivered by an Additional Obligor

 

3.                   

Requests and Notices  

 

Part 1

Utilisation Request – Loans

 

 

Part 2

Selection Notice

 

4.                   

Form of Transfer Certificate  

5.                   

Form of Assignment Agreement  

6.                   

Form of Accession Deed  

7.                   

Form of Resignation Letter  

8.                   

Form of Compliance Certificate  

9.                   

LMA Form of Confidentiality Undertaking  

10.               

Timetables  

 

Part 1

Loans

 

11.               

Agreed Security Principles  

12.               

Alternative Reference Banks  

13.               

Form of Increase Confirmation  

14.               

Forms of Notifiable Debt Purchase Transaction Notice  

 

Part 1

Form of Notice on Entering into Notifiable Debt Purchase Transaction

 

 

Part 2

Form  of  Notice  on  Termination  of  Notifiable  Debt   Purchase  Transaction/Notifiable Debt Purchase Transaction ceasing  to  be  with  Sponsor Affiliate

 

15.               

Form of Default Increase Confirmation  

16.               

Existing Security Documents  
     
     

Signatories

 

 

 

 

THIS AGREEMENT is dated                                 2021 and made:

 

BETWEEN:

 

 

(1)

CSP ALPHA MIDCO PTE. LTD. (a company incorporated in Singapore with registration number 201726883N and registered office address at 160 Robinson Road, #10-01 Singapore Business Federation Centre, Singapore 068914) (the Parent);

 

 

(2)

CSP ALPHA HOLDINGS PTE. LTD. (a company incorporated in Singapore with registration number 201705478E and registered office address at 160 Robinson Road, #10-01 Singapore Business Federation Centre, Singapore 068914) as original borrower (the Company);

 

 

(3)

EACH OF THE PERSONS listed in Part 1 of Schedule 1 (The Original Parties) as Original Guarantors (together, the Original Guarantors);

 

 

(4)

DBS BANK LTD. and ING BANK N.V., SINGAPORE BRANCH each a mandated lead arranger and bookrunner in respect of the Facilities (whether acting individually or together, the MLABs);

 

 

(5)

THE FINANCIAL INSTITUTIONS listed in Part 2 of Schedule 1 (The Original Parties) as lenders (the Original Lenders);

 

 

(6)

MADISON PACIFIC TRUST LIMITED as agent of the other Finance Parties (the Agent);

 

 

(7)

MADISON PACIFIC TRUST LIMITED as the security agent and/or security trustee for the Secured Parties (the Security Agent); and

 

 

(8)

DBS BANK LTD. as the secondary security agent and/or secondary security trustee for the Secured Parties (the Secondary Security Agent).

 

IT IS AGREED as follows:

 

 

1.

DEFINITIONS AND INTERPRETATION

 

 

1.1

Definitions

 

In this Agreement:

 

1992 ISDA Master Agreement means the 1992 Multicurrency Cross-Border Master Agreement as published by the International Swaps and Derivatives Association Inc.

 

2002 ISDA Master Agreement means the 2002 Master Agreement published by the International Swaps and Derivatives Association Inc.

 

Acceleration Event means the Agent exercising any of its rights under Clause 25.24 (Acceleration).

 

Acceptable Bank means:

 

 

(a)

any MLAB or any of its Affiliates in India;

 

 

(b)

a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of BBB or higher by Standard & Poor's Rating Services or Fitch Ratings Ltd or Baa2 or higher by Moody's Investors Service Limited or a comparable rating from an internationally recognised credit rating agency;

 

 

 

 

(c)

a bank or financial institution incorporated in India which has a rating for its short-term unsecured and non credit-enhanced debt obligations by CRISIL (or an equivalent rating by an alternative Indian credit rating agency of similar standing to CRISIL) which is equivalent to an international investment grade rating of BBB- or higher by Standard & Poor's Rating Services or Fitch Ratings Ltd or Baa3 or higher by Moody's Investors Service Limited; or

 

 

(d)

any other bank or financial institution approved by the Agent.

 

Acceptable Nation means any member state of the European Economic Area, any Participating Member State or any member state of the OECD which in each case:

 

 

(a)

has a rating for its long-term unsecured and non-credit-enhanced debt obligations of A- or higher by Standard & Poor's Rating Services, A- by Fitch Ratings Ltd or A3 or higher by Moody's Investors Service Limited or a comparable rating from an internationally recognised credit rating agency; or

 

 

(b)

has been approved by the Agent (acting on the instructions of the Majority Lenders).

 

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

 

Account Charge means the Singapore law account charge entered into on or about the date of this Agreement between the Security Agent and the Company.

 

Accounting Principles means, in relation to any member of the Group, generally accepted accounting principles in its jurisdiction of incorporation, including IFRS and US GAAP.

 

Accounting Reference Date means, in respect of a member of the Group, the date on which its financial year ends for accounting purposes.

 

Additional Borrower means a company which becomes an Additional Borrower in accordance with Clause 29 (Changes to the Obligors).

 

Additional Guarantor means any other company which becomes an Additional Guarantor in accordance with Clause 29 (Changes to the Obligors).

 

Additional Obligor means an Additional Borrower or an Additional Guarantor.

 

Adjusted Leverage has the meaning given to that term in Clause 22.1 (Financial definitions).

 

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

 

Agent's Spot Rate of Exchange means the Agent's spot rate of exchange for the purchase of the relevant currency with US dollars in the Hong Kong foreign exchange market at or about 11.00 a.m. on a particular day.

 

Agreed Security Principles means the principles set out in Schedule 11 (Agreed Security Principles).

 

Alternative Market Disruption Event has the meaning given to that term in paragraph (d) of Clause 12.2 (Market disruption).

 

Alternative Reference Bank Rate has the meaning given to that term in paragraph (b) of Clause 12.3 (Alternative Reference Bank Rate).

 

 

 

Alternative Reference Banks means the principal London offices of the banks listed in Schedule 12 (Alternative Reference Banks) or such other banks as may be appointed by the Agent in consultation with the Parent.

 

Annual Financial Statements has the meaning given to that term in Clause 21 (Information Undertakings).

 

Anti-Money Laundering Laws means all applicable laws (including those relating to financial record-keeping and reporting) concerning money laundering, terrorist or criminal financing, and including, without limitation, the Bank Secrecy Act, 31 U.S.C. sections 5301 et seq.; Executive Order No. 13224 on Terrorist Financing: Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism issued September 23, 2001, as amended by Order 13268; the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56 (aka the USA PATRIOT Act); Laundering of Monetary Instruments, 18 U.S.C. section 1956; Engaging in Monetary Transactions in Property Derived from Specified Unlawful Activity, 18 U.S.C. section 1957; and the Financial Recordkeeping and Reporting of Currency and Foreign Transactions Regulations, 31 C.F.R. Part 103.

 

Argentine Share Pledge has the meaning given to it in paragraph 2(a) of Part 4 of Schedule 2 (Conditions Precedent (Utilisation)).

 

Article 55 BRRD means Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.

 

Assignment Agreement means an agreement substantially in the form set out in Schedule 5 (Form of Assignment Agreement) or any other form agreed between the relevant assignor and assignee.

 

Attributable Cash and Cash Equivalent Investments means an amount calculated as follows:

 

https://cdn.kscope.io/4d531b21336fa349e4f4aeeee57dac1c-formula01.jpg

 

Where:

 

 

A

is the Cash and Cash Equivalent Investments in the relevant Non-Wholly Owned Entity which is freely and unconditionally available for distribution to the shareholders of the applicable entity;

 

 

B

is the number of shares in the Non-Wholly Owned Entity held by a member of the Group as at each date this calculation is made; and

 

 

C

is the total number of issued shares in the Non-Wholly Owned Entity as at each date this calculation is made.

 

Auditors means one of PricewaterhouseCoopers, Ernst & Young, Grant Thornton, KPMG or Deloitte & Touche, Binder Dijker Otte (or BDO) or any other firm approved in advance by the Majority Lenders (such approval not to be unreasonably withheld or delayed).

 

Australian Corporations Act means the Corporations Act 2001 (Cth).

 

Australian Obligor means an Obligor incorporated in Australia.

 

Australian PPSA means the Personal Property Securities Act 2009 (Cth).

 

 

 

Australian Security Provider means Startek Australia Pty Ltd (formerly called Aegis Services Australia Pty Ltd).

 

Australian Tax Act means the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth), jointly, as applicable.

 

Australian Tax Consolidated Group means a "Consolidated Group" or an "MEC Group" as defined in the Australian Tax Act.

 

Authorisation means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration.

 

Availability Period means:

 

 

(a)

in relation to the Term Facility, the period from and including the date of this Agreement to and including the date which is 30 days after the date of this Agreement; and

 

 

(b)

in relation to the Revolving Facility, the period from and including the date of this Agreement to and including the date which is 30 days prior to the Termination Date.

 

Available Commitment means, in relation to a Facility, a Lender's Commitment under that Facility minus (subject as set out below):

 

 

(a)

the amount of its participation in any outstanding Utilisations under that Facility; and

 

 

(b)

in relation to any proposed Utilisation, the amount of its participation in any other Utilisations that are due to be made under that Facility on or before the proposed Utilisation Date.

 

For the purposes of calculating a Lender's Available Commitment in relation to any proposed Utilisation under a Revolving Facility only, that Lender's participation in any relevant Revolving Facility Loans that are due to be repaid or prepaid on or before the proposed Utilisation Date shall not be deducted from that Lender's applicable Revolving Facility Commitment.

 

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

 

Available Permitted Acquisitions Debt Cap has the meaning given to that term in paragraph (e)(iii) of the definition of Permitted Acquisition.

 

Bail-In Action means the exercise of any Write-down and Conversion Powers.

 

Bail-In Legislation means:

 

 

(a)

in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; and

 

 

(b)

in relation to any state other than such an EEA Member Country or (to the extent that the United Kingdom is not such an EEA Member Country) the United Kingdom, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation.

 

Base Case Model means the financial model including profit and loss, balance sheet and cash flow projections in agreed form relating to the Group in agreed form, each prepared by the Company.

 

 

 

Base Reference Bank Rate means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request by the Base Reference Banks as the rate at which the relevant Base Reference Bank could borrow funds in the London interbank market, in the relevant currency for the relevant period, were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for that period.

 

Base Reference Banks means the principal London office of such banks as may be appointed by the Agent (acting on the instructions of the Majority Lenders) in consultation with the Company.

 

Bermudian Security Provider means Startek International Limited.

 

BHC Act Affiliate means, in respect of a person, its "affiliate" (as that term is defined in, and interpreted in accordance with, 12 United States Code 1841(k)).

 

Borrower means the Company or an Additional Borrower unless it has ceased to be a Borrower in accordance with Clause 29 (Changes to the Obligors).

 

Borrowings has the meaning given to that term in Clause 22.1 (Financial definitions).

 

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

 

 

(a)

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

 

exceeds:

 

 

(b)

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

 

Budget means:

 

 

(a)

in relation to the period beginning on the first Utilisation Date and ending on 31 December 2021, the Base Case Model in agreed form to be delivered by the Company to the Agent pursuant to Clause 4.1 (Initial conditions precedent); and

 

 

(b)

in relation to any other period, any budget delivered by the Company to the Agent in respect of that period pursuant to Clause 21.4 (Budget).

 

Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in London, Hong Kong and Singapore and in relation to any date for payment or purchase of a currency the principal financial centre of the country of that currency.

 

Capital Expenditure has the meaning given to that term in Clause 22.1 (Financial definitions).

 

Capital Square Partners means Capital Square Partners Management Pte. Limited, a private company incorporated with limited liability under the laws of the Cayman Islands.

 

Cash means, at any time, cash in hand or at bank and (in the latter case) credited to an account in the name of an member of the Group with an Acceptable Bank and to which that member of the Group is alone (or together with other Obligors) beneficially entitled and for so long as:

 

 

 

 

(a)

that cash is repayable on demand or within five days after that time;

 

 

(b)

repayment of that cash is not contingent on the prior discharge of any other indebtedness of any member of the Group or of any other person whatsoever or on the satisfaction of any other condition;

 

 

(c)

there is no Security over that cash except for Transaction Security or any Permitted Security constituted by a netting or set-off arrangement entered into by members of the Group in the ordinary course of their banking arrangements;

 

 

(d)

the cash is freely immediately (except as mentioned in paragraph (a) above) available to be applied in repayment or prepayment of the Loans; and

 

 

(e)

that cash is denominated in US dollars, Australian dollars, British pounds sterling, euros, Indian rupees, Malaysian Ringgit, Singapore dollars, South African Rand or any other the lawful currency of a jurisdiction of incorporation of a Material Company.

 

Cash Equivalent Investments means at any time:

 

 

(a)

certificates of deposit maturing within one year after the relevant date of calculation and issued by an Acceptable Bank;

 

 

(b)

any investment in marketable debt obligations issued or guaranteed by the government of the United States of America, the United Kingdom, Australia, Singapore, Hong Kong, Japan, India, Switzerland, Germany or France or any Acceptable Nation or by an instrumentality or agency of any of them having an equivalent credit rating, maturing within one year after the relevant date of calculation and not convertible or exchangeable to any other security;

 

 

(c)

commercial paper not convertible or exchangeable to any other security:

 

 

(i)

for which a recognised trading market exists;

 

 

(ii)

issued by an issuer incorporated in the United States of America, the United Kingdom, Australia, Singapore, Hong Kong, Japan, India, Switzerland, Germany or France or any Acceptable Nation;

 

 

(iii)

which matures within one year after the relevant date of calculation; and

 

 

(iv)

which has a credit rating of either A-1 or higher by Standard & Poor's Rating Services or F1 or higher by Fitch Ratings Ltd or P-1 or higher by Moody's Investors Service Limited, or, if no rating is available in respect of the commercial paper, the issuer of which has, in respect of its long-term unsecured and non-credit enhanced debt obligations, an equivalent rating;

 

 

(d)

Sterling bills of exchange eligible for rediscount at the Bank of England and accepted by an Acceptable Bank (or their dematerialised equivalent);

 

 

(e)

any investment in money market funds which: (i) have a credit rating of either A-1 or higher by Standard & Poor's Rating Services or F1 or higher by Fitch Ratings Ltd or P-1 or higher by Moody's Investors Service Limited; (ii) which invest substantially all their assets in securities of the types described in paragraphs (a) to (c) above; and (iii) can be turned into cash on not more than 30 days' notice;

 

 

 

 

(f)

in relation to any member of the Group incorporated in India only, any investment in money market funds or liquid mutual funds in India which: (i) have a credit rating from CRISIL of at least AA; (ii) which invest substantially all their assets in securities of the types described in paragraphs (a) to (d) above; and (iii) can be turned into cash on demand; or

 

 

(g)

any other debt security approved by the Majority Lenders,

 

in each case, denominated in U.S. Dollars, Sterling, Euro, Australian dollars, Singapore Dollars, Hong Kong Dollars, Rupees or any other lawful currency of any Relevant Jurisdiction to which any member of the Group is alone (or together with other members of the Group beneficially entitled at that time and which is not issued or guaranteed by any member of the Group or subject to any Security (other than Security arising under the Transaction Security Documents)).

 

Cashflow has the meaning given to that term in Clause 22.1 (Financial definitions).

 

Change of Control means:

 

 

(a)

the Investors cease to have the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to directly or indirectly:

 

 

(i)

cast, or control the casting of, 100% of the maximum number of votes that might be cast at a general meeting of the Holdco (excluding any ESOP Shares);

 

 

(ii)

appoint or remove all, or the majority, of the directors or other equivalent officers of Holdco; or

 

 

(iii)

give directions with respect to the operating and financial policies of Holdco with which the directors or other equivalent officers of Holdco are obliged to comply;

 

 

(b)

the Investors cease to hold (directly or indirectly) legally and beneficially 100% of the issued share capital of Holdco (excluding any ESOP Shares and any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital);

 

 

(c)

Holdco ceases to have the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to directly:

 

 

(i)

cast, or control the casting of, more than 50% of the maximum number of votes that might be cast at a general meeting of Startek;

 

 

(ii)

appoint or remove all, or the majority, of the directors or other equivalent officers of Startek; or

 

 

(iii)

(subject to compliance by Startek’s directors with duties imposed on them as directors as a matter of law) give directions with respect to the operating and financial policies of Startek with which the directors or other equivalent officers of Startek are obliged to comply;

 

 

(d)

Holdco ceases to hold (directly) legally and beneficially more than 50% of the issued share capital of Startek (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital);

 

 

(e)

Startek ceases to have the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to directly:

 

 

 

 

(i)

cast, or control the casting of, 100% of the maximum number of votes that might be cast at a general meeting of the Parent;

 

 

(ii)

appoint or remove all, or the majority, of the directors or other equivalent officers of the Parent; or

 

 

(iii)

give directions with respect to the operating and financial policies of the Parent with which the directors or other equivalent officers of the Parent are obliged to comply;

 

 

(f)

Startek ceases to hold (directly) legally and beneficially 100% of the issued share capital of the Parent (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital).

 

 

(g)

the Parent ceases to have the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to directly or indirectly:

 

 

(i)

cast, or control the casting of, 100% of the maximum number of votes that might be cast at a general meeting of the Company;

 

 

(ii)

appoint or remove all, or the majority, of the directors or other equivalent officers of the Company; or

 

 

(iii)

give directions with respect to the operating and financial policies of the Company with which the directors or other equivalent officers of the Company are obliged to comply;

 

 

(h)

the Parent ceases to hold (directly or indirectly) legally and beneficially 100% of the issued share capital of the Company (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or

 

 

(i)

a sale of all or substantially all of the assets of the Group.

 

Charged Property means all of the assets of the Obligors which from time to time are, or are expressed to be, the subject of the Transaction Security.

 

Claim means any claim, suit, action, proceeding, investigation, notice or demand.

 

Clean-Up Date means in relation to any Permitted Acquisition falling with paragraph (e) of that definition, the date falling 60 days after the date on which completion of the Permitted Acquisition occurs.

 

Clean-Up Default means any Event of Default existing on or arising after the first Utilisation Date, other than an Event of Default which relates to:

 

 

(a)

Clause 25.1 (Non-payment); or

 

 

(b)

paragraph (a) of Clause 25.3 (Other obligations) to the extent that it relates to a Clean Up Undertaking; or

 

 

(c)

Clause 25.6 (Insolvency), Clause 25.7 (Insolvency proceedings and Business Rescue Proceedings), Clause 25.8 (Creditors' process) or Clause 25.11 (Cessation of business).

 

Clean-Up Representation means any of the representations and warranties under Clause 20 (Representations) (other than Clause 20.8 (Insolvency)), Clause 20.19 (Security and Financial Indebtedness) and Clause 20.18 (Sanctions and Anti-Money Laundering).

 

 

 

Clean-Up Undertaking means any of Clause 23.20 (Financial Indebtedness), Clause 23.14 (Negative pledge), Clause 23.17 (Loans or credit), Clause 23.19 (Dividends and share redemption), or Clause 23.21 (Share capital).

 

Close-Out Netting means:

 

 

(a)

in respect of a Hedging Document based on a 1992 ISDA Master Agreement, any step involved in determining the amount payable in respect of an Early Termination Date (as defined in the 1992 ISDA Master Agreement) under section 6(e) of the 1992 ISDA Master Agreement before the application of any subsequent Set off (as defined in the 1992 ISDA Master Agreement);

 

 

(b)

in respect of a Hedging Document based on a 2002 ISDA Master Agreement, any step involved in determining an Early Termination Amount (as defined in the 2002 ISDA Master Agreement) under section 6(e) of the 2002 ISDA Master Agreement; and

 

 

(c)

in respect of a Hedging Document not based on an ISDA Master Agreement, any step involved in a termination of the hedging transactions under that Hedging Document pursuant to any provision of that Hedging Document which has a similar effect to either provision referenced in paragraph (a) and paragraph (b) above.

 

Code means, at any date, the US Internal Revenue Code of 1986 (or any successor legislation thereto), as amended from time to time, and the regulations promulgated and the rulings issued thereunder, all as the same may be in effect at such date.

 

Commitment means a Term Facility Commitment or Revolving Facility Commitment.

 

Commodity Exchange Act means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

 

Company Account Charge has the meaning given to it in para 3(a) of Part 1 of Schedule 2 (Conditions Precedent (Utilisation).

 

Company Debenture has the meaning given to it in para 3(a) of Part 1 of Schedule 2 (Conditions Precedent (Utilisation).

 

Company Share Charge has the meaning given to it in para 3(a) of Part 1 of Schedule 2 (Conditions Precedent (Utilisation).

 

Compliance Certificate means a certificate substantially in the form set out in Schedule 8 (Form of Compliance Certificate).

 

Conditions Subsequent (Phase 1) Deadline means the date falling five Business Days after the first Utilisation Date.

 

Conditions Subsequent (Phase 1) Obligor means Startek Honduras S.A. de C.V. a limited liability company duly incorporated, organized and existing under the laws of the Republic of Honduras, registered with record number two, two, three, three (2233) of the Mercantile Registry of San Pedro Sula, domiciled in San Pedro Sula, Department of Cortés.

 

Conditions Subsequent (Phase 2) Deadline means the date falling 30 days after the first Utilisation Date.

 

 

 

Conditions Subsequent (Phase 3) Deadline means the date falling 60 days after the first Utilisation Date.

 

Confidential Information means all information relating to any Obligor, the Group, the Target Group, the Finance Documents or a Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or a Facility from either:

 

 

(a)

any member of the Group, any member of the Target Group or any of its advisers; or

 

 

(b)

another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any member of the Target Group or any of its advisers,

 

in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes information that:

 

 

(i)

is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 47 (Confidentiality); or

 

 

(ii)

is identified in writing at the time of delivery as non-confidential by any member of the Group or any member of the Target Group or any of its advisers; or

 

 

(iii)

is known by that Finance Party before the date the information is disclosed to it in accordance with paragraph (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group or the Target Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.

 

Confidentiality Undertaking means a confidentiality undertaking substantially in a recommended form of the LMA as set out in Schedule 9 (LMA Form of Confidentiality Undertaking) or in any other form agreed between the Company and the Agent.

 

Covered Entity means:

 

 

(a)

a "covered entity" as that term is defined in, and interpreted in accordance with, 12 Code of Federal Regulations § 252.82(b);

 

 

(b)

a "covered bank" as that term is defined in, and interpreted in accordance with, 12 Code of Federal Regulations § 47.3(b); or

 

 

(c)

a "covered FSI" as that term is defined in, and interpreted in accordance with, 12 Code of Federal Regulations § 382.2(b).

 

CRISIL means CRISIL Limited (India).

 

[***]

 

 

 

CTA means the Corporation Tax Act 2009.

 

Debt means the Loan Debt and the Hedging Debt.

 

Debt Purchase Transaction means, in relation to a person, a transaction where such person:

 

 

(a)

purchases by way of assignment or transfer;

 

 

(b)

enters into any sub-participation in respect of; or

 

 

(c)

enters into any other agreement or arrangement having an economic effect substantially similar to a sub-participation in respect of,

 

any Commitment or amount outstanding under this Agreement.

 

Debt Service Reserve Account means an account denominated in US$:

 

 

(a)

held in Singapore by the Company with a Finance Party;

 

 

(b)

identified in a certificate from the Company to the Agent as a Debt Service Reserve Account; and

 

 

(c)

subject to Security in favour of the Security Agent which Security is in form and substance satisfactory to the Security Agent,

 

(as the same may be redesignated, substituted or replaced from time to time).

 

Debt Service Reserve Amount means, on any date, an amount equal to the aggregate of:

 

 

(a)

interest payable on the next Payment Date under Clause 10.2 (Payment of interest); and

 

 

(b)

principal payable on the next Payment Date under Clause 6.1 (Repayment of Term Loans).

 

Default means an Event of Default or any event or circumstance specified in Clause 25 (Events of Default) which would (with the expiry of a grace period, the lapse of time, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.

 

Default Increase Confirmation means a confirmation substantially in the form set out in Schedule 15 (Form of Default Increase Confirmation).

 

Default Increase Lender has the meaning given to that term in paragraph (e)(ii) of Clause 2.3 (Default Increase).

 

Defaulting Lender means any Lender (other than a Lender which is a Sponsor Affiliate):

 

 

(a)

which has failed to make its participation in a Loan available (or has notified the Agent or the Company (which has notified the Agent) that it will not make its participation in a Loan available) by the Utilisation Date of that Loan in accordance with Clause 5.4 (Lenders' participation);

 

 

(b)

which has otherwise rescinded or repudiated a Finance Document; or

 

 

 

 

(c)

with respect to which an Insolvency Event has occurred and is continuing, unless, in the case of paragraph (a) above:

 

 

(i)

its failure to pay is caused by:

 

 

(A)

administrative or technical error; or

 

 

(B)

a Disruption Event; and

 

payment is made within three Business Days of its due date; or

 

 

(ii)

the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.

 

Default Right has the meaning given to that term in, and shall be interpreted in accordance with, 12 Code of Federal Regulations §§ 252.81, 47.2 or 382.1, as applicable.

 

Delegate means any delegate, agent, attorney, co-trustee or co-security agent appointed by the Security Agent.

 

Disposal has the meaning given to that term in paragraph (a) of Clause 8.2 (Disposal, Insurance Proceeds and Excess Cashflow).

 

Distress Event means:

 

 

(a)

an Acceleration Event; or

 

 

(b)

the enforcement of any Transaction Security.

 

Disruption Event means either or both of:

 

 

(a)

a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facilities (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

 

 

(b)

the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

 

 

(i)

from performing its payment obligations under the Finance Documents; or

 

 

(ii)

from communicating with other Parties in accordance with the terms of the Finance Documents,

 

and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.

 

Dormant Subsidiary means Startek Costa Rica and Aegis Holidays Malaysia Sdn Bhd.

 

[***]

 

Dutch Security Provider means Aegis Netherlands II B.V..

 

 

 

Early Termination Date means an "Early Termination Date" (as defined in the relevant Hedging Document).

 

EEA Member Country means any member state of the European Union, Iceland, Liechtenstein and Norway.

 

Employee Plan means an employee pension benefit plan within the meaning of Section 3(2) of ERISA (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which an Obligor or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4062 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.

 

Enforcement Action means:

 

 

(a)

in relation to any Debt:

 

 

(i)

the acceleration of any Debt or the making of any declaration that any Debt is prematurely due and payable (other than as a result of it becoming unlawful for a Lender to perform its obligations under, or of any voluntary or mandatory prepayment arising under, the Finance Documents);

 

 

(ii)

the making of any declaration that any Debt are payable on demand;

 

 

(iii)

the making of a demand in relation to a Debt that is payable on demand;

 

 

(iv)

the making of any demand against any Obligor in relation to Guarantee Liabilities of that Obligor;

 

 

(v)

the exercise of any right to require any Obligor to acquire any Debt (including exercising any put or call option against any Obligor for the redemption or purchase of any Debt);

 

 

(vi)

the exercise of any right of set-off, account combination or payment netting against any Obligor in respect of any Debt other than the exercise of any such right:

 

 

(A)

as Close-Out Netting by a Hedge Counterparty;

 

 

(B)

as Payment Netting by a Hedge Counterparty; and

 

 

(C)

as Inter-Hedging Agreement Netting by a Hedge Counterparty; and

 

 

(vii)

the suing for, commencing or joining of any legal or arbitration proceedings against any Obligor to recover any Debt;

 

 

(b)

the premature termination or close-out of any hedging transaction under any Hedging Document;

 

 

(c)

the taking of any steps to enforce or require the enforcement of any Transaction Security (including the crystallisation of any floating charge forming part of the Transaction Security);

 

 

(d)

the entering into of any composition, compromise, assignment or arrangement with any Obligor which owes any Debt, or has given any Security, guarantee or indemnity or other assurance against loss in respect of the Debt (other than any action permitted under Clause 27 (Changes to the Lenders)) ;or

 

 

 

 

(e)

the petitioning, applying or voting for, or the taking of any steps (including the appointment of any liquidator, receiver, administrator or similar officer) in relation to, the winding up, dissolution, administration or reorganisation of any Obligor which owes any Debt, or has given any Security, guarantee, indemnity or other assurance against loss in respect of any of the Debt, or any of such Obligor's assets or any suspension of payments or moratorium of any indebtedness of any such Obligor, or any analogous procedure or step in any jurisdiction,

 

except that the following shall not constitute Enforcement Action:

 

 

(i)

the taking of any action falling within paragraph (a)(vii) or (e) above which is necessary (but only to the extent necessary) to preserve the validity, existence or priority of claims in respect of Debt, including the registration of such claims before any court or governmental authority and the bringing, supporting or joining of proceedings to prevent any loss of the right to bring, support or join proceedings by reason of applicable limitation periods; or

 

 

(ii)

a Hedge Counterparty bringing legal proceedings against any person solely for the purpose of:

 

 

(A)

obtaining injunctive relief (or any analogous remedy outside England and Wales) to restrain any actual or putative breach of any Hedging Document to which it is party;

 

 

(B)

obtaining specific performance (other than specific performance of an obligation to make a payment) with no claim for damages; or

 

 

(C)

requesting judicial interpretation of any provision of any Hedging Document to which it is party with no claim for damages.

 

Environment means the environment, natural resources, humans, animals, plants and all other living organisms including the ecological systems of which they form part and the following media:

 

 

(a)

air (including, without limitation, air within natural or man-made structures, whether above or below ground);

 

 

(b)

water (including, without limitation, territorial, coastal and inland waters, water vapour, drinking water supply, water under or within land and water in drains and sewers and water in any man-made or natural structures); and

 

 

(c)

land (including, without limitation, land under water).

 

Environmental Claim means any Claim by any person in respect of any Environmental Law.

 

Environmental Law means any applicable law or regulation which relates to:

 

 

(a)

the pollution or protection of the Environment;

 

 

(b)

human or animal health or safety;

 

 

(c)

the conditions of the workplace;

 

 

(d)

vibration, noise, odour or mould; or

 

 

(e)

the generation, handling, storage, use, release or spillage of any substance (including gases, liquids and solids) which, alone or in combination with any other, is capable of causing harm to the Environment, including, without limitation, any waste.

 

 

 

Environmental Permits means any permit and other Authorisation and the filing of any notification, report or assessment issued or required under or pursuant to any Environmental Law.

 

ERISA means, at any date, the United States Employee Retirement Income Security Act of 1974 (or any successor legislation thereto) as amended from time to time, and the regulations promulgated and rulings issued thereunder, all as the same may be in effect at such date.

 

ERISA Affiliate means any person that for purposes of Title I and Title IV of ERISA and Section 412 of the Code would be deemed at any relevant time to be a single employer with an Obligor, pursuant to Section 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA.

 

ERISA Event means:

 

 

(a)

any reportable event, as defined in Section 4043 of ERISA, with respect to an Employee Plan, as to which PBGC has not by regulation waived the requirement of Section 4043(a) of ERISA that it be notified of such event;

 

 

(b)

the filing of a notice of intent to terminate any Employee Plan, if such termination would require material additional contributions in order to be considered a standard termination within the meaning of Section 4041(b) of ERISA, or the filing under Section 4041(c) of ERISA of a notice of intent to terminate any Employee Plan or the termination of any Employee Plan under Section 4041(c) of ERISA;

 

 

(c)

the institution of proceedings under Section 4042 of ERISA by the PBGC for the termination of, or the appointment of a trustee to administer, any Employee Plan;

 

 

(d)

any failure by any Employee Plan to satisfy the minimum funding requirements of Sections 412 and 430 of the Code or Section 302 of ERISA applicable to such Employee Plan, in each case whether or not waived;

 

 

(e)

the failure to make a required contribution under Section 412 or 430 of the Code to any Employee Plan that would result in the imposition of an encumbrance or at any time prior to date hereof, a filing under Section 412 of the Code or Section 302 of ERISA of any request for a minimum funding variance with respect to any Employee Plan or Multiemployer Plan;

 

 

(f)

an engagement in a non-exempt prohibited transaction within the meaning of Section 4975 of the Code or Section 406 of ERISA;

 

 

(g)

the complete or partial withdrawal of any Obligor or any ERISA Affiliate from a Multiemployer Plan;

 

 

(h)

an Obligor or an ERISA Affiliate incurring any liability under Title IV of ERISA with respect to any Employee Plan (other than premiums due and not delinquent under Section 4007 of ERISA); and

 

 

(i)

a determination that any Employee Plan is, or is expected to be, in "at risk" status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code).

 

ESOP means any stock option or management equity plan, share incentive scheme, employee stock ownership plan or similar arrangement or any compensation payments to senior management and/or employees (whether being former, current or new employees or senior management), in each case, relating to no more that 10 per cent. of the entire issued share capital of Startek or the Holdco at any time.

 

 

 

ESOP Shares means any ordinary shares, stock options or restricted stock units of Startek or the Holdco issued or which may be issued pursuant to any ESOP.

 

EU Bail-In Legislation Schedule means the document described as such and published by the Loan Market Association (or any successor person) from time to time.

 

Event of Default means any event or circumstance specified as such in Clause 25 (Events of Default).

 

Excess Cashflow has the meaning given to that term in Clause 22.1 (Financial definitions).

 

Excluded Swap Obligation means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an "eligible contract participant" as defined in the Commodity Exchange Act at the time the guarantee of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guarantee or security interest is or becomes illegal.

 

Existing Facility means the facilities under the Existing Loan Facilities Agreement.

 

Existing Loan Facilities Agreement means the facilities agreement dated 27 October 2017 between, among others, the Company as borrower, DBS Bank Ltd., ING Bank N.V., Singapore Branch and Standard Chartered Bank as mandated lead arrangers and book runners and DBS Bank Ltd. as agent, as amended by an amendment letter dated 10 November 2017, an amendment letter dated 8 December 2017, an amendment letter dated 15 January 2018 and a consent letter dated 21 June 2018, as amended and restated by an amendment agreement dated 31 January 2019, as further amended and restated by an amendment agreement dated 9 July 2020 and as further amended and restated by an amendment agreement dated 30 July 2020.

 

Existing Mauritius Floating Charges means each of the documents set out in paragraph 6(b) to 6(d) (inclusive) under the heading “Existing Mauritius Security Agreements” in Schedule 16 (Existing Security Documents)

 

Existing Security Documents means each of the Security created in relation to the Existing Loan Facilities and as set out in Schedule 16 (Existing Security Documents).

 

Facility means the Term Facility or the Revolving Facility.

 

Facility Office means:

 

 

(a)

in respect of a Lender, the office or offices notified by that Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days' written notice) as the office or offices through which it will perform its obligations under this Agreement; or

 

 

(b)

in respect of any other Finance Party, the office in the jurisdiction in which it is resident for tax purposes.

 

FATCA means:

 

 

(a)

sections 1471 to 1474 of the Code or any associated regulations or other official guidance;

 

 

 

 

(b)

any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of anything referred to in paragraph (a) above; or

 

 

(c)

any agreement pursuant to the implementation of anything referred to in paragraph (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.

 

FATCA Application Date means:

 

 

(a)

in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; or

 

 

(b)

in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraph (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA;

 

FATCA Deduction means a deduction or withholding from a payment under a Finance Document required by FATCA.

 

FATCA Exempt Party means a Party that is entitled to receive payments free from any FATCA Deduction.

 

Fee Letter means:

 

 

(a)

any letter or letters dated on or about the date of this Agreement, and from time to time, between the MLABs and the Company (or the Agent and the Company or the Security Agent and the Company) setting out any of the fees referred to in Clause 13 (Fees); and

 

 

(b)

any agreement setting out fees payable to a Finance Party referred to in Clause 2.2 (Increase) or 2.3 (Default Increase) of this Agreement or under any other Finance Document.

 

Finance Document means this Agreement, any Accession Deed, any Compliance Certificate, any Fee Letter, any Hedging Document, the Hedging Letter, the Mandate Letter, any Resignation Letter, any Selection Notice, any Transaction Security Document, any Utilisation Request, any Subordination Agreement and any other document designated as a "Finance Document" by the Agent and the Company provided that where the term "Finance Document" is used in, and construed for the purposes of, this Agreement, a Hedging Document shall be a Finance Document only for the purposes of:

 

 

(a)

the definition of "Guarantee Liabilities";

 

 

(b)

the definition of "Material Adverse Effect";

 

 

(c)

paragraph (a) of the definition of "Permitted Transaction";

 

 

(d)

the definition of "Secured Obligations";

 

 

(e)

the definition of “Secured Party Claim”;

 

 

(f)

the definition of "Transaction Document";

 

 

(g)

the definition of "Transaction Security Document";

 

 

 

 

(h)

paragraph (a)(iv) of Clause 1.2 (Construction);

 

 

(i)

Clause 19 (Guarantee and Indemnity);

 

 

(j)

Clause 25 (Events of Default) (other than Clause 25.24 (Acceleration));

 

 

(k)

Paragraph (c) of Clause 27.8 (Accession of Hedge Counterparties);

 

 

(l)

paragraph (a)(iii) of Clause 33.7 (Security Agent's obligations);

 

 

(m)

Clause 33.18 (Winding up of trust); and; and

 

 

(n)

Clause 47.10 (Personal Data Protection Act).

 

Finance Lease has the meaning given to it in Clause 22.1 (Financial definitions).

 

Finance Party means the Agent, a Hedge Counterparty, a Lender, each MLAB, the Security Agent or the Secondary Security Agent, provided that where the term "Finance Party" is used in, and construed for the purposes of, this Agreement, a Hedge Counterparty shall be a Finance Party only for the purposes of:

 

 

(a)

the definition of "Secured Parties";

 

 

(b)

paragraph (a)(i) of Clause 1.2 (Construction);

 

 

(c)

paragraph (c) of the definition of "Material Adverse Effect";

 

 

(d)

Clause 19 (Guarantee and Indemnity);

 

 

(e)

Clause 23.34 (Further assurance);

 

 

(f)

Clause 33.22 (Approval);

 

 

(g)

Paragraph (c) of Clause 37.2(c) (Notification of prescribed events);

 

 

(h)

Clause 38 (Conduct of Business by the Finance Parties); and

 

 

(i)

Clause 47.10 (Personal Data Protection Act).

 

Financial Indebtedness means any indebtedness for or in respect of:

 

 

(a)

moneys borrowed and debit balances at banks or other financial institutions;

 

 

(b)

any acceptance under any acceptance credit or bill discounting facility (or dematerialised equivalent);

 

 

(c)

any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;

 

 

(d)

the amount of any liability in respect of Finance Leases;

 

 

(e)

receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis and meet any requirement for de-recognition under the Accounting Principles);

 

 

 

 

(f)

any Treasury Transaction (and, when calculating the value of that Treasury Transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that Treasury Transaction, that amount) shall be taken into account);

 

 

(g)

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

(i)     an underlying liability of an entity which is not a member of the Group which liability would fall within one of the other paragraphs of this definition; or (ii) any liabilities of any member of the Group relating to any post-retirement benefit scheme;

 

 

(h)

any amount raised by the issue of shares which are redeemable (other than at the option of the issuer) before the Termination Date or are otherwise classified as borrowings under the Accounting Principles;

 

 

(i)

any amount of any liability under an advance or deferred purchase agreement if: (i) one of the primary reasons behind entering into the agreement is to raise finance or to finance the acquisition or construction of the asset or service in question; or (ii) the agreement is in respect of the supply of assets or services and payment is due more than 180 days after the date of supply;

 

 

(j)

any amount raised under any other transaction (including any forward sale or purchase, sale and sale back or sale and leaseback agreement) having the commercial effect of a borrowing or otherwise classified as borrowings under the Accounting Principles; and

 

 

(k)

the amount of any liability in respect of any guarantee for any of the items referred to in paragraphs (a) to (j) above.

 

Financial Quarter has the meaning given to that term in Clause 22.1 (Financial definitions).

 

Financial Year has the meaning given to that term in Clause 22.1 (Financial definitions).

 

Foreign Public Official means an individual who:

 

 

(a)

holds a legislative, administrative or judicial position of any kind, whether appointed or elected, of a country or territory outside the United Kingdom (or any subdivision of such a country or territory);

 

 

(b)

exercises a public function:

 

 

(i)

for or on behalf of a country or territory outside the United Kingdom (or any subdivision of such a country or territory); or

 

 

(ii)

for any public agency or public enterprise of that country or territory (or subdivision); or

 

 

(c)

is an official or agent of a public international organisation.

 

Fraudulent Transfer Law means any applicable United States bankruptcy and State fraudulent transfer and conveyance statute and any related case law, and terms used in paragraph (c) of Clause 19.11(c) (Guarantee limitations) are to be construed in accordance with the Fraudulent Transfer Laws.

 

Funds Flow Statement means a funds flow statement in agreed form.

 

 

 

Group means Startek, the Parent, the Company, the Target, and each of their respective Subsidiaries for the time being.

 

Group Chief Executive Officer means the chief executive officer of the Group, having responsibility for all members of the Group.

 

Group Structure Chart means the group structure chart in the agreed form.

 

Guarantee Liabilities means, in relation to an Obligor, the liabilities under the Finance Documents (present or future, actual or contingent and whether incurred solely or jointly) it may have to a Lender or a Hedge Counterparty or another Obligor as or as a result of its being a guarantor or surety (including, without limitation, liabilities arising by way of guarantee, indemnity, contribution or subrogation and in particular any guarantee or indemnity arising under or in respect of the Finance Documents).

 

Guarantor means an Original Guarantor or an Additional Guarantor, unless it has ceased to be a Guarantor in accordance with Clause 29 (Changes to the Obligors).

 

Guarantor Coverage Test means the obligation of the Company under Clause 23.33 (Guarantors).

 

Hedge Counterparty means a person that accedes to this Agreement as a Hedge Counterparty in accordance with Clause 27.8 (Accession of Hedge Counterparties).

 

Hedging Debt means all liabilities payable to a Hedge Counterparty under or in connection with any Hedging Document.

 

Hedging Document means any document entered into between the Company and a Hedge Counterparty for the purpose of implementing the hedging strategy required by the Hedging Letter.

 

Hedging Letter means the letter dated on or before the date of this Agreement and made between the Company, the MLABs and the Agent describing the hedging arrangements to be entered into in respect of the interest rate and currency liabilities of the Company in relation to the Term Facility.

 

Holdco means CSP Alpha Holdings Parent Pte. Ltd., a company incorporated in Singapore with registration number 201725081Z and registered office at 160 Robinson Road, #10-01 Singapore Business Federation Centre, Singapore 068914.

 

Holding Account means an account:

 

 

(a)

held in Singapore by the Company with a Finance Party;

 

 

(b)

identified in a certificate from the Company to the Agent as a Holding Account; and

 

 

(c)

subject to Security in favour of the Security Agent which Security is in form and substance satisfactory to the Security Agent,

 

(as the same may be redesignated, substituted or replaced from time to time).

 

Holding Company means, in relation to a person, any other person in respect of which it is a Subsidiary.

 

IFRS means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.

 

 

 

Impaired Agent means the Agent at any time when:

 

 

(a)

has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;

 

 

(b)

the Agent otherwise rescinds or repudiates a Finance Document;

 

 

(c)

(if the Agent is also a Lender) it is a Defaulting Lender under paragraph (a), (b) or (c) of the definition of "Defaulting Lender"; or

 

 

(d)

an Insolvency Event has occurred and is continuing with respect to the Agent,

 

unless, in the case of paragraph (a) above:

 

 

(i)

its failure to pay is caused by:

 

 

(A)

administrative or technical error; or

 

 

(B)

a Disruption Event; and

 

payment is made within three Business Days of its due date; or

 

 

(ii)

the Agent is disputing in good faith whether it is contractually obliged to make the payment in question.

 

Increase Confirmation means a confirmation substantially in the form set out in Schedule 13 (Form of Increase Confirmation).

 

Increase Lender has the meaning given to that term in paragraph (a)(i) of Clause 2.2 (Increase).

 

Indian Working Capital Facilities has the meaning give to it in paragraph (g) of the definition of “Permitted Financial Indebtedness” in this Clause 1.1.

 

Indirect Tax means:

 

 

(a)

any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112);

 

 

(b)

any goods and services tax, consumption tax, value added tax or any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above; and

 

 

(c)

any other tax (of similar nature to the above) imposed elsewhere outside the European Union.

 

Information Memorandum means the document in the form approved by the Company concerning the Original Obligors and the Target Group which, at the request of the Company and on its behalf was prepared in relation to this transaction and distributed by the MLABs after the date of this Agreement.

 

Information Package means the Base Case Model.

 

Insolvency Event in relation to an entity means that the entity:

 

 

(a)

is dissolved (other than pursuant to a consolidation, amalgamation or merger);

 

 

 

 

(b)

becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due or a moratorium is declared in respect of any of its indebtedness or, in the case of any Obligor incorporated in South Africa, is deemed to be unable, in terms of section 345 of the Companies Act 61 of 1973 of South Africa, to pay its debts generally or is "financially distressed" (as defined in the South African Companies Act) and, in each case, that Finance Party is under a public insolvency, bankruptcy or governmental proceeding or process that is not dismissed, discharged, stayed or restrained, in each case, within 30 days of the institution or presentation thereof;

 

 

(c)

makes a general assignment, arrangement, composition or compromise with or for the benefit of its creditors;

 

 

(d)

institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a public proceeding seeking a judgment of insolvency or bankruptcy or the commencement of business rescue proceedings or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation or the commencement of business rescue proceedings by it or such regulator, supervisor or similar official;

 

 

(e)

has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or the commencement of business rescue proceedings or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation or the commencement of business rescue proceedings, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is public and instituted or presented by a person or entity not described in paragraph (d) above and:

 

 

(i)

results in a judgment of insolvency or bankruptcy, or the commencement of business rescue proceedings or the entry of an order for relief or the making of an order for its winding-up or liquidation or the commencement of business rescue proceedings; or

 

 

(ii)

is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;

 

 

(f)

has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger) or to authorise the commencement of any business rescue proceedings;

 

 

(g)

seeks or becomes subject to the public appointment of an administrator, judicial manager, provisional liquidator, conservator, receiver, trustee, custodian, monitor, business rescue practitioner or other similar official for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in paragraph (d) above);

 

 

(h)

has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;

 

 

 

 

(i)

causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (g) above; or

 

 

(j)

takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.

 

Intellectual Property means:

 

 

(a)

any patents, trade marks, service marks, designs, business names, copyrights, database rights, design rights, domain names, moral rights, inventions, confidential information, knowhow and other intellectual property rights and interests (which may now or in the future subsist), whether registered or unregistered; and

 

 

(b)

the benefit of all applications and rights to use such assets of each member of the Group (which may now or in the future subsist).

 

Inter-Hedging Agreement Netting means the exercise of any right of set-off, account combination, close-out netting or payment netting (whether arising out of a cross agreement netting agreement or otherwise) by a Hedge Counterparty against liabilities owed to an Obligor by that Hedge Counterparty under a Hedging Document in respect of Hedging Debt owed to that Hedge Counterparty by that Obligor under another Hedging Document.

 

Interest Payment Date means the last day of an Interest Period.

 

Interest Period means, in relation to a Loan, each period determined in accordance with Clause 11 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 10.3 (Default interest).

 

Interpolated Screen Rate means, in relation to LIBOR for any Loan, the rate (rounded to the same number of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between:

 

 

(a)

the applicable Screen Rate for the relevant currency for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and

 

 

(b)

the applicable Screen Rate for the relevant currency for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,

 

each as of the Specified Time on the Quotation Day.

 

Investment Company has the meaning given to it in the United States Investment Company Act of 1940.

 

Investors means:

 

 

(a)

Capital Square Partners; and

 

 

(b)

funds or limited partnerships managed or advised by, or which are Related Funds of, Capital Square Partners.

 

Ipso Facto Event means where a Borrower is or becomes the subject of proceedings within the meaning of section 440 of the IRDA which would, but for the operation of that section, entitle the

 

 

 

Agent to accelerate the Loan in accordance with Clause 25.24 (Acceleration) as a result of an Event of Default under this Agreement.

 

IRDA means the Insolvency, Restructuring and Dissolution Act 2018, Act No. 40 of 2018 of Singapore.

 

ISDA Master Agreement means each of the 1992 ISDA Master Agreement and the 2002 ISDA Master Agreement.

 

Joint Venture means any joint venture entity, whether a company, unincorporated firm, undertaking, association, joint venture or partnership or any other entity.

 

Legal Opinion means any legal opinion delivered to the Agent under Clause 4.1 (Initial conditions precedent) or Clause 29 (Changes to the Obligors).

 

Legal Reservations means:

 

 

(a)

the principle that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors;

 

 

(b)

the time barring of claims under the Limitation Acts, the possibility that an undertaking to assume liability for or indemnify a person against non-payment of UK stamp duty may be void and defences of set-off or counterclaim;

 

 

(c)

the principle that, in certain circumstances, security granted by way of a fixed charge may be recharacterised as a floating charge;

 

 

(d)

similar principles, rights and defences under the laws of any Relevant Jurisdiction; and

 

 

(e)

any other matters which are set out as qualifications or reservations as to matters of law of general application in the Legal Opinions.

 

Lender means:

 

 

(a)

any Original Lender; and

 

 

(b)

any bank, financial institution, trust, fund or other entity which has become a Party as a Lender in accordance with Clause 2.2 (Increase), 2.3 (Default Increase) or Clause 27 (Changes to the Lenders),

 

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

 

LIBOR means, in relation to any Loan:

 

 

(a)

the applicable Screen Rate;

 

 

(b)

(if no Screen Rate is available for the Interest Period of that Loan) the Interpolated Screen Rate for that Loan; or

 

 

(c)

if:

 

 

(i)

no Screen Rate is available for the currency of that Loan; or

 

 

 

 

(ii)

no Screen Rate is available for the Interest Period of that Loan and it is not possible to calculate an Interpolated Screen Rate for that Loan,

 

the Base Reference Bank Rate,

 

as of, in the case of paragraphs (a) and (c) above, the Specified Time on the Quotation Day for the currency of that Loan and for a period equal in length to the Interest Period of that Loan and, if that rate is less than zero, LIBOR shall be deemed to be zero.

 

Limitation Acts means the Limitation Act 1980 and the Foreign Limitation Periods Act 1984.

 

LMA means the Loan Market Association.

 

Loan means a Term Loan or a Revolving Facility Loan.

 

Loan Debt means all liabilities payable or owing by the Obligors to the Finance Parties under or in connection with the Finance Documents (other than under or in connection with any Hedging Document).

 

Majority Lenders means a Lender or Lenders whose Commitments aggregate more than 66 2/3% of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 66 2/3% of the Total Commitments immediately prior to that reduction).

 

Malaysian Share Pledge has the meaning given to it in para 3(a) of Part 1 of Schedule 2 (Conditions Precedent (Utilisation).

 

Mandate Letter means the mandate letter originally dated 12 January 2021 between DBS Bank Ltd., ING Bank N.V., Singapore Branch, and the Company (as may be amended and/or restated from time to time).

 

Mandatory Prepayment Account means an interest-bearing account:

 

 

(a)

held in Singapore by the Company with a Finance Party;

 

 

(b)

identified in a certificate from the Company to the Agent as a Mandatory Prepayment Account;

 

 

(c)

subject to Security in favour of the Security Agent which Security is in form and substance satisfactory to the Agent and Security Agent; and

 

 

(d)

from which no withdrawals may be made by any members of the Group except as contemplated by this Agreement,

 

(as the same may be redesignated, substituted or replaced from time to time).

 

Margin means in the case of each Loan, 4.50% per annum, but if:

 

 

(a)

no Default has occurred and is continuing;

 

 

(b)

a period of 9 Months has expired since the first Utilisation Date; and

 

 

(c)

the Adjusted Leverage in respect of the most recently completed Relevant Period is within a range set out below,

 

 

 

then the Margin for each Loan will be the percentage per annum set out below in the column opposite that range:

 

 

Adjusted Leverage

 

Margin % p.a.

 

More than or equal to 2.75:1

 

4.50

 

Less than 2.75:1 but greater than or equal to 2.25:1

 

4.00

 

Less than 2.25:1

 

3.75

 

However:

 

 

(i)

any increase or decrease in the Margin for a Loan shall take effect on the date (the reset date) which is five Business Days after the date of receipt by the Agent of the Compliance Certificate for that Relevant Period pursuant to Clause 21.2 (Provision and contents of Compliance Certificate);

 

 

(ii)

if, following receipt by the Agent of the Compliance Certificate related to the relevant Annual Financial Statements, that Compliance Certificate shows that a higher Margin should have applied during a certain period, then paragraph (b) of Clause 10.2 (Payment of interest) shall apply and the Margin for that Loan shall be the percentage per annum determined using the table above and the revised ratio of the Adjusted Leverage calculated using the figures in that Compliance Certificate;

 

 

(iii)

while a Default is continuing, the Margin for each Loan shall be 4.50% per annum; and

 

 

(iv)

for the purpose of determining the Margin, the Adjusted Leverage and Relevant Period shall be determined in accordance with Clause 22.1 (Financial definitions).

 

Margin Regulations means Regulations U and X issued by the Board of Governors of the United States Federal Reserve System.

 

Margin Stock means "margin stock" or "margin securities" as defined in the Margin Regulations.

 

Material Adverse Effect means a material adverse effect on:

 

 

(a)

the business, operations, property or condition (financial or otherwise) of any Borrower, the Obligors taken as a whole, any member of the Group which satisfies the requirement of paragraph (c) of the definition of Material Company or the Group taken as a whole; or

 

 

(b)

the ability of an Obligor to perform its material obligations under the Finance Documents; or

 

 

(c)

the validity or enforceability of, or the effectiveness or ranking of any Security granted or purporting to be granted pursuant to any of, the Finance Documents or the rights or remedies of any Finance Party under any of the Finance Documents.

 

Material Company means, at any time:

 

 

(a)

an Obligor;

 

 

(b)

the Target; or

 

 

 

 

(c)

a member of the Group (other than an Obligor or a Target) which has earnings before interest, tax, depreciation and amortisation calculated on the same basis as EBITDA (as defined in Clause 22.1 (Financial definitions)) representing 5% or more of EBITDA, (as defined in Clause 22.1 (Financial definitions)) or has gross assets or turnover (excluding intra-group items) representing 5% or more of the gross assets or turnover of the Group, calculated on a consolidated basis.

 

Compliance with the conditions set out in paragraph (c) above shall be determined by reference to the most recent Compliance Certificate supplied by the Company and/or the latest audited financial statements of that Subsidiary (consolidated in the case of a Subsidiary which itself has Subsidiaries) and the latest audited consolidated financial statements of the Group. However, if a Subsidiary has been acquired since the date as at which the latest audited consolidated financial statements of the Group were prepared, the financial statements shall be deemed to be adjusted in order to take into account the acquisition of that Subsidiary (that adjustment being certified by the Group's Auditors as fairly representing of the revised EBITDA (as defined in Clause 22.1 (Financial definitions)), gross assets or turnover of the Group).

 

A report by the Auditors of the Company that a Subsidiary is or is not a Material Company (other than a Target) may be requested by the Agent and shall, in the absence of manifest error, be conclusive and binding on all Parties.

 

Mauritian Share Pledge has the meaning given to it in para 3(a) of Part 1 of Schedule 2 (Conditions Precedent (Utilisation).

 

Mauritius Floating Charge means the Mauritius floating charge agreement to be entered into on or about the date of this Agreement by the Target and the Secondary Security Agent.

 

Mezzanine Borrower means CSP Alpha Co-Invest LP, an exempted limited partnership established in the Cayman Islands.

 

Mezzanine Facility means:

 

 

(a)

the facility made available to the Mezzanine Borrower pursuant to a facility agreement dated 27 October 2017 between, amongst others, the Mezzanine Borrower and Abraaj Credit B.V., as amended or restated from time to time; and

 

 

(b)

any facility made available to the Mezzanine Borrower after the date of this Agreement for the purposes of refinancing in full the facility referred to in paragraph (a) above.

 

Mezzanine Purchase Option Letter means:

 

 

(a)

the buy-out side letter dated 27 October 2017 between among others Global Loan Agency Services Limited as the Mezzanine Agent and DBS Bank Ltd. as the Senior Agent; or

 

 

(b)

any buy-out side letter entered into between, among others, the Agent and the facility agent appointed under any facility referred to in paragraph (b) of the definition of Mezzanine Facility, provided that such buy-out side letter shall be in form and substance similar to the buy-out side letter referred to in paragraph (a) above.

 

Minimum Balance means an amount equal to at least the sum of: (a) US$7,500,000 (or its equivalent in other currencies) of Total Cash and Cash Equivalent Investments; and (b) the outstanding Revolving Facility Loans at the applicable time.

 

 

 

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

 

 

(a)

(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;

 

 

(b)

if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and

 

 

(c)

if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.

 

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

 

Multiemployer Plan means a "multiemployer plan" (as defined in Section 3(37) of ERISA) that is subject to Title IV of ERISA contributed to for any employees of an Obligor or any ERISA Affiliate.

 

New Lender has the meaning given to that term in Clause 27.1 (Assignments and transfers by the Lenders).

 

New Shareholder Injections means:

 

 

(a)

the aggregate amount subscribed for by the shareholders of Startek for any Permitted Share Issue of Startek;

 

 

(b)

any loan made by Holdco, the Investors or any of their Affiliates (other than a member of the Group) to Startek after the first Utilisation Date and on-lent from Startek to the Company and:

 

 

(i)

(in the case of any loan made to the Company) which is subject to Transaction Security and subordinated under a Subordination Agreement; and

 

 

(ii)

(in the case of any loan made to Startek) subordinated under a Subordination Agreement;

 

 

(c)

any loan made by Holdco, the Investors or any of their Affiliates (other than a member of the Group) to Startek after the first Utilisation Date where the proceeds are not on-lent by Startek to any other member of the Group and such loan to Startek is subordinated under a Subordination Agreement; or

 

 

(d)

any loan made by Holdco, the Investors or any of their Affiliates (other than a member of the Group) to Startek after the first Utilisation Date where the proceeds are on-lent by Startek to any other member of the Group (other than to the Parent or the Parent’s Subsidiaries) and (in the case of any loan made to an Obligor) subordinated under a Subordination Agreement.

 

Non-Consenting Lender has the meaning given to that term in paragraph (a) of Clause 46.5 (Replacement of Lender).

 

Non-Wholly Owned Entity means any member of the Group which is not wholly owned by another member of the Group.

 

 

 

Notifiable Debt Purchase Transaction has the meaning given to that term in paragraph (b) of Clause 28.2 (Disenfranchisement on Debt Purchase Transactions entered into by Sponsor Affiliates).

 

Obligor means a Borrower or a Guarantor.

 

Obligors' Agent means the Company, appointed to act on behalf of each Obligor in relation to the Finance Documents pursuant to Clause 2.5 (Obligors' Agent).

 

OECD means the Organisation for Economic Co-operation and Development.

 

OFAC means the Office of Foreign Assets Control of the US Department of the Treasury.

 

Opening Net Leverage Ratio means the ratio of Total Net Debt on the first Utilisation Date (assuming for the purposes of this calculation that the first Utilisation Date has already occurred) to EBITDA of not more than 3.50:1.00, calculated based on an unadjusted EBITDA (pre-IFRS 16) of US$50,000,000 for the last twelve Months ending 31 December 2020.

 

Original Financial Statements means:

 

 

(a)

in relation to Startek its audited consolidated financial statements for its Financial Year ended 31 December 2019; and

 

 

(b)

in relation to the Company, its audited standalone financial statements for its Financial Year ending 31 March 2020.

 

Original Jurisdiction means, in relation to an Obligor, the jurisdiction under whose laws that Obligor is incorporated as at the date of this Agreement or, in the case of an Additional Obligor, as at the date on which that Additional Obligor becomes Party as a Borrower or a Guarantor (as the case may be).

 

Original Obligor means the Company or an Original Guarantor.

 

Parent Debenture has the meaning given to it in paragraph 3(a) of Part 1 of Schedule 2 (Conditions Precedent (Utilisation)).

 

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

 

Party means a party to this Agreement.

 

Payment means, in respect of any Debt (or any other liabilities or obligations), a payment, prepayment, repayment, redemption, defeasance or discharge of that Debt (or other liabilities or obligations).

 

Payment Date means the last day of an Interest Period or a Term Facility Repayment Date.

 

Payment Netting means:

 

 

(a)

in respect of a Hedging Document based on an ISDA Master Agreement, netting under section 2(c) of the relevant ISDA Master Agreement; and

 

 

(b)

in respect of a Hedging Document not based on an ISDA Master Agreement, netting pursuant to any provision of that Hedging Document which has a similar effect to the provision referenced in paragraph (a) above.

 

 

 

PBGC means the US Pension Benefit Guaranty Corporation, or any entity succeeding to all or any of its functions under ERISA.

 

Perfection Requirements means the making or procuring of appropriate registrations, filings, endorsements, stampings, intimation in accordance with local laws, notations in stock registries, notarisations, legalisation and/or notifications of the Transaction Security Documents and/or the Transaction Security created thereunder and/or in order to achieve the relevant priority for the Transaction Security created thereunder, provided that any qualification of any representation, covenant, undertaking or other statement contained in this Agreement by reference to such Perfection Requirements only applies if and to the extent such Perfection Requirements have been or will be complied with within any relevant timeframes required by the Finance Documents and by applicable law or regulation.

 

Permitted Acquisition means:

 

 

(a)

an acquisition by a member of the Group (other than the Parent) of an asset sold, leased, transferred or otherwise disposed of by another member of the Group in circumstances constituting a Permitted Disposal;

 

 

(b)

an acquisition of shares or securities pursuant to a Permitted Share Issue;

 

 

(c)

an acquisition of securities which are Cash Equivalent Investments so long as those Cash Equivalent Investments (if owned by an Obligor) become subject to the Transaction Security as soon as is reasonably practicable, subject to the Agreed Security Principles;

 

 

(d)

the incorporation of a company by the Company or one of its Subsidiaries which on incorporation becomes a member of the Group, but only if:

 

 

(i)

that company is incorporated in the Cayman Islands, the British Virgin Islands, Bermuda, Seychelles, Hong Kong, the Philippines, any Relevant Jurisdiction of any member of the Group or an Acceptable Nation; and

 

 

(ii)

if the shares in that company are owned by an Obligor (and subject to the Agreed Security Principles), Security over those shares must be created in favour of the Security Agent (in form and substance satisfactory to the Security Agent) within 30 days of the date of incorporation of that company;

 

 

(e)

an acquisition (other than an acquisition by the Parent) of: (A) at least 90 per cent. of the issued share capital of a limited liability company; or (B) (if the acquisition is made by a limited liability company whose sole purpose is to make the acquisition) a business or undertaking carried on as a going concern, but only if:

 

 

(i)

no Default is continuing on the closing date for the acquisition or would occur as a result of the acquisition;

 

 

(ii)

the acquired company, business or undertaking is incorporated or established, and carries on its principal business in, the Cayman Islands, the British Virgin Islands, Bermuda, Seychelles, Hong Kong, the Philippines, any Relevant Jurisdiction of any member of the Group or an Acceptable Nation and is engaged in a business substantially the same as that carried on by the Group;

 

 

(iii)

the aggregate of the consideration (including associated costs and expenses) for the acquisition (but not taking into account for this purpose any Financial Indebtedness or other assumed actual or contingent liability, in each case remaining in the acquired

 

 

 

company and its Subsidiaries (or any such business or undertaking) at the date of completion of the acquisition) funded from Financial Indebtedness incurred by the Group and Retained Excess Cashflow does not exceed US$75,000,000 (or its equivalent in other currencies), less:

 

 

(A)

any Financial Indebtedness or other assumed actual or contingent liability, in each case remaining in the acquired company (or any such business) at the date of completion of the acquisition;

 

 

(B)

the amount of any consideration (including associated costs and expenses) funded using Financial Indebtedness for any previous Permitted Acquisition which was permitted under this paragraph (e) (but not taking into account for this purpose any Financial Indebtedness or other assumed actual or contingent liability, in each case remaining in the acquired company (or any such business) at the date of completion of that previous Permitted Acquisition);

 

 

(C)

any Financial Indebtedness or other assumed actual or contingent liability, in each case remaining in any acquired companies or businesses acquired as part of a previous Permitted Acquisition which was permitted under this paragraph (e) and which has not been repaid or prepaid on the date of completion of the Permitted Acquisition;

 

 

(D)

the amount of any investment in any Permitted Joint Venture funded using Financial Indebtedness; and

 

 

(E)

the amount of any deferred consideration permitted pursuant to paragraph (vii) below in respect of the acquisition and any previous Permitted Acquisition which remains outstanding unless that deferred consideration has been fully funded by New Shareholder Injections which are held in blocked account in the name of the Company over which Transaction Security has been granted in favour of, and in form and substance satisfactory to, the Security Agent,

 

the balance being the Available Permitted Acquisitions Debt Cap;

 

 

(iv)

the consideration for the acquisition is funded from Financial Indebtedness incurred pursuant to Clause 2.2 (Increase) or via the incurrence of Permitted Financial Indebtedness and/or Retained Excess Cashflow, with the balance to be funded by New Shareholder Injections;

 

 

(v)

subject to the Agreed Security Principles, if the acquired entity or any of its Subsidiaries are Material Companies, the Company has procured that such entities have acceded to this Agreement as Additional Guarantors within 30 days of the acquisition;

 

 

(vi)

the Agent has been provided with tax, accounting, legal, commercial or other due diligence reports in respect of that acquisition, in each case in form and substance satisfactory to the Majority Lenders;

 

 

(vii)

any deferred consideration (including associated costs and expenses) for the acquisition is deferred for a period of no longer than 18 months from the date of completion of the acquisition; and

 

 

 

 

(viii)

any non-cash consideration for the acquisition is limited to newly issued shares issued by a Holding Company of the Parent (the Issuing Entity) provided that: (A) such issue of shares does not cause a Change of Control to occur; and (B) any amount owing from any member of the Group to the Issuing Entity as a result of the payment of non-cash consideration in the form of newly issued shares in the Issuing Entity is subject to Transaction Security and subordinated pursuant to a Subordination Agreement;

 

 

(f)

[***]

 

 

(g)

[***]

 

 

(h)

an acquisition of not less than 20 per cent. of the issued share capital of a limited liability company provided that:

 

 

(i)

the aggregate consideration (including associated costs and expenses) for such acquisitions does not exceed U$10,000,000 in any financial year of the Company;

 

 

(ii)

no Default is continuing on the closing date for the acquisition or would occur as a result of the acquisition; and

 

 

(iii)

Adjusted Leverage (calculated on a pro forma basis but, for the avoidance of doubt, without including any benefit from such acquisition in the EBTIDA calculation) for the most recently ended Relevant Period is less than 2.50:1.

 

Any acquisition will only be permitted under paragraph (e) above if the Company has delivered to the Agent not later than 20 Business Days before legally committing to make such acquisition a certificate signed by two directors of the Company to which is attached a copy of the latest audited accounts (or if not available, management accounts) of the target company or business.

 

Such certificate must give calculations showing in reasonable detail that:

 

 

(a)

the target company has demonstrated positive EBITDA and positive operating cash flows for the Relevant Period ending on the most recent Quarter Date;

 

 

(b)

the Company would have remained in compliance with its obligations under Clause 22 (Financial Covenants) if the covenant tests were recalculated for the Relevant Period ending on: (i) the last day of the previous financial year (using the latest full year audited financials of the target company); or (ii) the most recent Quarter Date (using the latest quarterly financial statements of the target company, on which limited review has been performed by its auditor), in each case consolidating the financial statements of the target company (consolidated if it has Subsidiaries) or business with the financial statements of the Group for such period on a pro forma basis and as if the consideration for the proposed acquisition had been paid at the start of that Relevant Period and including any amount drawn in accordance with Clause 2.2 (Increase) to fund the acquisition; and

 

 

(c)

the total consideration payable for the acquisition and a breakdown of that total consideration to show the total amount of any Financial Indebtedness or other assumed actual or contingent liability, in each case remaining in the acquired company (or any such business) at the date of completion of the acquisition and any amount of the consideration that represents deferred consideration and non-cash consideration.

 

 

 

Permitted Disposal means any sale, lease, licence, transfer or other disposal:

 

 

(a)

of trading stock or cash made by any member of the Group in the ordinary course of trading of the disposing entity;

 

 

(b)

of any asset by a member of the Group (the Disposing Company) to another member of the Group (the Acquiring Company), but if:

 

 

(i)

the Disposing Company is an Obligor, the Acquiring Company must also be an Obligor;

 

 

(ii)

the Disposing Company had given Security over the asset, the Acquiring Company must give equivalent Security over that asset; and

 

 

(iii)

the Disposing Company is a Guarantor, the Acquiring Company must be a Guarantor guaranteeing at all times an amount no less than that guaranteed by the Disposing Company;

 

 

(c)

of assets (other than shares, businesses, real property or Intellectual Property) in exchange for other assets comparable or superior as to type, value and quality;

 

 

(d)

in the ordinary course of business of obsolete or redundant vehicles, plant and equipment for cash;

 

 

(e)

of Cash Equivalent Investments for cash or in exchange for other Cash Equivalent Investments;

 

 

(f)

constituted by a licence of intellectual property rights permitted by Clause 23.26 (Intellectual Property);

 

 

(g)

to a Joint Venture, to the extent permitted by Clause 23.10 (Joint ventures);

 

 

(h)

arising as a result of any Permitted Security;

 

 

(i)

of any receivables sold or discounted for cash by any member of the Group in relation to indebtedness incurred pursuant to paragraph (j) of the definition of "Permitted Financial Indebtedness"; or

 

 

(j)

of assets (other than shares) for cash where the higher of the book value and net consideration receivable (when aggregated with the higher of the book value and net consideration receivable for any other sale, lease, licence, transfer or other disposal not allowed under the preceding paragraphs or as a Permitted Transaction) does not exceed US$2,000,000 (or its equivalent) in total during the term of this Agreement.

 

Permitted Distribution means:

 

 

(a)

the payment of a dividend by any member of the Group which is a Subsidiary of Startek to its immediate shareholder(s) (other than payment of a dividend by the Company to the Parent);

 

 

(b)

the payment of a dividend by the Company to the Parent (and corresponding payment of a dividend by the Parent to Startek, and corresponding payment of a dividend by Startek to its shareholders, including Holdco) provided in each case that:

 

 

(i)

the payment is made when no Event of Default is continuing or would occur immediately after the making of the payment;

 

 

 

 

(ii)

the payment is made when the Adjusted Leverage (calculated on a pro forma basis taking into account the relevant dividend) for the two most recently ended consecutive Relevant Periods was demonstrated to be lower than 2.50:1 in the relevant Compliance Certificate for that Relevant Period; and

 

 

(iii)

the Company has delivered a certificate (signed by two directors of the Company) to the Agent immediately prior to the payment certifying that the Group would continue to be in compliance with the financial covenants set out at Clause 22.2 (Financial condition) for the two most recently ended consecutive Relevant Periods if those financial covenants were re-tested on a pro forma basis to take into account the payment of the dividend pursuant to this paragraph (b);

 

 

(c)

the payment of sponsor monitoring fees and expenses by the Company to the Parent (and corresponding payment of a dividend by the Parent to Startek, and corresponding payment of a dividend by Startek to its shareholders, including Holdco) in accordance with a management services contract entered or to be entered into between the Company and the Parent, provided that the aggregate amount of all such management fees (including any Indirect Tax) shall not exceed, in any Financial Year, the greater of 1.5 per cent. of the budgeted EBITDA of the Group for that Financial Year (as stated in good faith and based on reasonable assumptions in the Budget delivered to the Agent for that Financial Year) and US$400,000 (or its equivalent in other currencies) provided that the payment is:

 

 

(i)

made when no Event of Default is continuing or would occur immediately after the making of the payment; and

 

 

(ii)

the Company has delivered a certificate (signed by two directors of the Company) to the Agent immediately prior to the payment certifying that the Group would continue to be in compliance with the financial covenants set out at Clause 22.2 (Financial condition) for the most recently ended Relevant Period if those financial covenants were re-tested on a pro forma basis to take into account the payment of the dividend pursuant to this paragraph (c).

 

Permitted Enforcement Action means any action of any kind:

 

 

(a)

to demand payment, declare prematurely due and payable or otherwise seek to accelerate, or place on demand, all or any part of any Hedging Debt (including designating an Early Termination Date, or terminating, or closing out any transaction under, any Hedging Document prior to its stated maturity, or demanding payment of any amount which would become payable on or following an Early Termination Date but in each case only to the extent required and for the purposes of taking any other Permitted Enforcement Action against any Obligor);

 

 

(b)

to terminate or close out in whole or in part any hedging transaction under any Hedging Document prior to its stated maturity if:

 

 

(i)

in relation to a Hedging Document which is based on the 1992 ISDA Master Agreement:

 

 

(A)

an Illegality or Tax Event or Tax Event Upon Merger (each as defined in the 1992 ISDA Master Agreement); or

 

 

(B)

an event similar in meaning and effect to a "Force Majeure Event" (as defined in paragraph (ii) below); or

 

 

 

 

(ii)

in relation to a Hedging Document which is based on the 2002 ISDA Master Agreement, an Illegality or Tax Event, Tax Event Upon Merger or a Force Majeure Event (each as defined in the 2002 ISDA Master Agreement),

 

has occurred in respect of that Hedging Document;

 

 

(iii)

if an Obligor has defaulted on any payment due under that Hedging Document (after allowing any applicable notice or grace periods);

 

 

(iv)

an Event of Default has occurred under Clause 25.6 (Insolvency) or Clause 25.7 (Insolvency proceedings and Business Rescue Proceedings), in relation to any Obligor which is party to that Hedging Document; or

 

 

(v)

pursuant to the terms of the ISDA Benchmark Supplement Protocol, published published on 10 December 2018 by the International Swaps and Derivatives Association, Inc;

 

 

(c)

to demand payment from and recover from any Obligor all or any part of any Hedging Debt (including by exercising any set-off, save as required by law) under and in accordance with any guarantee in respect of the Hedging Debt;

 

 

(d)

to exercise or enforce any right against any Obligor under or in connection with any guarantee in respect of the Hedging Debt;

 

 

(e)

to petition for (or take or support any other step which may lead to) an Insolvency Event in relation to any Obligor in respect of any claim under any guarantee in respect of the Hedging Debt;

 

 

(f)

to sue, claim or bring proceedings against any Obligor in respect of any claim under any guarantee in respect of the Hedging Debt; or

 

 

(g)

taken with the consent of the Security Agent.

 

Permitted Financial Indebtedness means Financial Indebtedness:

 

 

(a)

arising under the Finance Documents, including under an increase in Commitments pursuant to and in accordance with Clause 2.2 (Increase) and Clause 2.3 (Default Increase);

 

 

(b)

owed by a member of the Group which is not an Obligor to another member of the Group which is not an Obligor;

 

 

(c)

owed by a member of the Group to an Obligor which is subordinated to amounts owing under the Finance Documents pursuant to a Subordination Agreement;

 

 

(d)

arising under a Permitted Loan or a Permitted Guarantee or as permitted by Clause 23.30 (Treasury Transactions);

 

 

(e)

of any person acquired by a member of the Group after the first Utilisation Date which is incurred under arrangements in existence at the date of acquisition, but not incurred or increased or having its maturity date extended in contemplation of, or since, that acquisition, and outstanding only for a period of three Months following the date of acquisition;

 

 

 

 

(f)

arising in relation to bank guarantees or performance guarantees issued by any bank or financial institution on behalf of any member of the Group not exceeding US$10,000,000 (or its currency equivalent) in aggregate;

 

 

(g)

arising under any short term working capital facility provided to any member of the Target Group incorporated in India, provided in each case that the maturity of any such facility is 12 months or less and further provided that the outstanding principal amount of all such Financial Indebtedness incurred under this paragraph (g) does not exceed US$10,000,000 (or its currency equivalent) in aggregate at any time (the Indian Working Capital Facilities);

 

 

(h)

incurred as Hedging Debt;

 

 

(i)

incurred pursuant to any of paragraph (b) to (d) of the definition of New Shareholder Injection;

 

 

(j)

owed by any member of the Group in respect of any receivables financing on a non-recourse basis provided that the aggregate outstanding principal amount of all Financial Indebtedness incurred under this paragraph (j) does not exceed the higher of US$35,000,000 (or its currency equivalent) or 0.5x EBITDA in aggregate at any time;

 

 

(k)

arising under: (i) any capital expenditure loans of up to US$3,500,000 (or its currency equivalent); and (ii) any capital expenditure letters of credit of up to USD$10,000,000 (or its currency equivalent) for a maximum tenor of six Months, provided that the aggregate amount of the capital expenditure loans and capital expenditure letters of credit do not exceed US$10,000,000 (or its currency equivalent) in aggregate at any time;

 

 

(l)

under Finance Leases of vehicles, plant, equipment or computers, provided that the aggregate capital value of all such items so leased under outstanding leases by members of the Group does not exceed US$5,000,000 (or its currency equivalent) at any time;

 

 

(m)

incurred by any member of the Group provided that the outstanding principal amount of such Financial Indebtedness of the Group does not exceed US$5,000,000 (or its currency equivalent) in aggregate at any time;

 

 

(n)

incurred by a member of the Group under, pursuant to or in connection with any government relief or economic assistance measures in relation to the Covid-19 pandemic (including the Coronavirus Aid, Relief, and Economic Security (CARES) Act of the United States of America) of a principal amount and with a repayment schedule approved by the Lenders in writing prior to the incurrence of such Financial Indebtedness.; and

 

 

(o)

arising under, or in relation to, the Existing Facility, provided that such Financial Indebtedness shall be irrevocably and unconditionally repaid in full on or prior to the first Utilisation Date.

 

Permitted Guarantee means:

 

 

(a)

the endorsement of negotiable instruments in the ordinary course of trade;

 

 

(b)

any performance guarantees issued directly by any member of the Group to its customers on normal commercial terms and in the ordinary course of its trading activities or any counter-indemnity by any member of the Group in respect of any performance guarantee issued by any bank or financial institution to the customers of such member of the Group which constitutes Permitted Financial Indebtedness under paragraph (f) of the definition of "Permitted Financial Indebtedness";

 

 

(c)

any guarantee of a Joint Venture to the extent permitted by Clause 23.10 (Joint ventures);

 

 

 

 

(d)

any guarantee permitted under Clause 23.20 (Financial Indebtedness);

 

 

(e)

any guarantee given in respect of the netting or set-off arrangements permitted pursuant to paragraph (c) of the definition of "Permitted Security";

 

 

(f)

any indemnity given in the ordinary course of the documentation of an acquisition or disposal transaction which is a Permitted Acquisition or Permitted Disposal which indemnity is in a customary form and subject to customary limitations; or

 

 

(g)

any guarantee provided under, or in relation to, the Existing Facility, provided that such guarantee shall be irrevocably and unconditionally released on or prior to the first Utilisation Date.

 

Permitted Joint Venture means any investment in any Joint Venture where:

 

 

(a)

the Joint Venture is incorporated, or established, and carries on its principal business, in the Cayman Islands, the British Virgin Islands, Bermuda, Seychelles, Hong Kong, the Philippines, any Relevant Jurisdiction of any member of the Group or an Acceptable Nation;

 

 

(b)

the Joint Venture is engaged in a business substantially the same as that carried on by the Group;

 

 

(c)

during the life of the Facilities, the aggregate (the Joint Venture Investment) of:

 

 

(i)

all amounts subscribed for shares in, lent to, or invested in all such Joint Ventures by any member of the Group;

 

 

(ii)

the contingent liabilities of any member of the Group under any guarantee given in respect of the liabilities of any such Joint Venture; and

 

 

(iii)

the book value of any assets transferred by any member of the Group to any such Joint Venture,

 

funded from Financial Indebtedness incurred by the Group does not exceed the Available Permitted Acquisitions Debt Cap at the time of the Joint Venture Investment; and

 

 

(d)

at least 50% of the total aggregate consideration for the Joint Venture Investment is funded from New Shareholder Injections with the balance funded from Financial Indebtedness incurred pursuant to Clause 2.2 (Increase).

 

Permitted Loan means:

 

 

(a)

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

 

 

(b)

Financial Indebtedness which is referred to in the definition of, or otherwise constitutes, Permitted Financial Indebtedness (except under paragraph (c) of that definition);

 

 

(c)

a loan made to a Joint Venture to the extent permitted under Clause 23.10 (Joint ventures);

 

 

(d)

a loan made by an Obligor to another Obligor or made by a member of the Group which is not an Obligor to another member of the Group (other than the Parent) which is subordinated to amounts owing under the Finance Documents pursuant to a Subordination Agreement;

 

 

 

 

(e)

any loan made by an Obligor (other than the Parent) to a member of the Group which is not an Obligor provided that the aggregate amount of the Financial Indebtedness under any such loans does not exceed US$6,000,000 (or its equivalent) at any time;

 

 

(f)

a loan made by a member of the Group to an employee or director of any member of the Group if the amount of that loan when aggregated with the amount of all loans to employees and directors by members of the Group does not exceed US$1,000,000 (or its equivalent) at any time; or

 

 

(g)

any loan (other than a loan made by a member of the Group to another member of the Group) not permitted under the preceding paragraphs, provided that the amount of Financial Indebtedness under all such loans do not exceed US$250,000 (or its currency equivalent) in aggregate.

 

Permitted Security means:

 

 

(a)

any Security created or evidenced under the Transaction Security Documents;

 

 

(b)

any lien arising by operation of law and in the ordinary course of trading and not as a result of any default or omission by any member of the Group;

 

 

(c)

any netting or set-off arrangement entered into by any member of the Group in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances of members of the Group but only so long as: (i) such arrangement does not permit credit balances of Obligors to be netted or set off against debit balances of members of the Group which are not Obligors; and (ii) such arrangement does not give rise to other Security over the assets of Obligors in support of liabilities of members of the Group which are not Obligors;

 

 

(d)

any payment or close-out netting or set-off arrangement pursuant to any Treasury Transaction or foreign exchange transaction entered into by a member of the Group which constitutes Permitted Financial Indebtedness, excluding any Security or Quasi-Security under a credit support arrangement;

 

 

(e)

any Security or Quasi-Security over or affecting any asset acquired by a member of the Group after the first Utilisation Date if:

 

 

(i)

that Security or Quasi-Security was not created in contemplation of the acquisition of that asset by a member of the Group;

 

 

(ii)

the principal amount secured has not been increased in contemplation of or since the acquisition of that asset by that member of the Group; and

 

 

(iii)

that Security or Quasi-Security is removed or discharged within 3 Months of the date of acquisition of that asset;

 

 

(f)

any Security or Quasi-Security over or affecting any asset of any company which becomes a member of the Group after the first Utilisation Date, where the Security or Quasi-Security is created prior to the date on which that company becomes a member of the Group if:

 

 

(i)

the Security or Quasi-Security was not created in contemplation of the acquisition of that company;

 

 

(ii)

the principal amount secured has not increased in contemplation of or since the acquisition of that company; and

 

 

 

 

(iii)

the Security or Quasi-Security is removed or discharged within 3 Months of that company becoming a member of the Group;

 

 

(g)

any Security or Quasi-Security arising under any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to a member of the Group in the ordinary course of trading and on the supplier's standard or usual terms and not arising as a result of any default or omission by any member of the Group;

 

 

(h)

any Quasi-Security arising as a result of a disposal which is a Permitted Disposal;

 

 

(i)

any Security or Quasi-Security arising under any Finance Lease, provided that the Financial Indebtedness in respect of such Finance Lease constitutes Permitted Financial Indebtedness;

 

 

(j)

any Security securing indebtedness incurred by any member of the Target Group incorporated in India under any working capital facility permitted pursuant to paragraph (g) of the definition of "Permitted Financial Indebtedness", provided that such Security is limited to the assets of such member of the Target Group and the maximum aggregate principal amount secured does not at any time exceed US$10,000,000 (or its currency equivalent);

 

 

(k)

any cash collateral provided to secure bank and performance guarantees falling under paragraph (f) of the definition of Permitted Financial Indebtedness provided that such cash collateral does not exceed US$10,000,000 (or its currency equivalent) in aggregate;

 

 

(l)

any Security securing indebtedness the outstanding principal amount of which (when aggregated with the outstanding principal amount of any other indebtedness which has the benefit of Security given by any member of the Group other than any permitted under the preceding paragraphs) does not exceed US$500,000 (or its equivalent in other currencies);

 

 

(m)

any Security granted over any receivables of any member of the Group securing indebtedness incurred pursuant to paragraph (j) of the definition of Permitted Financial Indebtedness; or

 

 

(n)

any Security or Quasi-Security arising under the Existing Security Documents, provided that such Existing Security Documents are released by no later than the time specified in Clause

23.35 (Conditions subsequent).

 

Permitted Share Issue means an issue of:

 

 

(a)

ordinary shares by the Parent or Startek, paid for in full in cash upon issue and which by their terms are not redeemable and where such issue does not lead to a Change of Control; or

 

 

(b)

shares by a member of the Group which is a Subsidiary of Startek to its then existing shareholders where (if the existing shares of the Subsidiary held by the then existing shareholders are the subject of the Transaction Security) the newly-issued shares (to the extent issued to shareholders which have granted Transaction Security over the existing shares in such Subsidiary) also become subject to the Transaction Security on the same terms; or

 

 

(c)

ordinary shares, stock options or restricted stock units by Startek pursuant to any ESOP, provided that such issue does not or would not lead to a Change of Control.

 

Permitted Transaction means:

 

 

(a)

any disposal required, Financial Indebtedness incurred, guarantee, indemnity or Security or Quasi-Security given, or other transaction arising, under the Finance Documents;

 

 

 

 

(b)

the solvent liquidation or reorganisation of any member of the Group which is not an Obligor so long as any payments or assets distributed as a result of such liquidation or reorganisation are distributed to other members of the Group;

 

 

(c)

transactions (other than: (i) any sale, lease, licence, transfer or other disposal: and (ii) the granting or creation of Security or the incurring or permitting to subsist of Financial Indebtedness) conducted in the ordinary course of trading on arm's length terms;

 

 

(d)

[***]; or

 

 

(e)

any payments or other transactions contemplated by the Structure Memorandum or the Funds Flow Statement.

 

Philippines Security Agreement has the meaning given to it in paragraph 2(a) of Part 3 of Schedule 2 (Conditions Precedent and Conditions Subsequent).

 

QFC has the meaning given to the term "qualified financial contract" in, and shall be interpreted in accordance with, 12 United States Code 5390(c)(8)(D).

 

Qualified ECP Guarantor means, in respect of any Swap Obligation, each Obligor that has total assets exceeding $10,000,000 at the time the relevant guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other person as constitutes an "eligible contract participant" under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an "eligible contract participant" at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

Quarter Date means the last day of a Financial Quarter.

 

Quasi-Security has the meaning given to that term in paragraph (a) of Clause 23.14 (Negative pledge).

 

Quotation Day means, in relation to any period for which an interest rate is to be determined two London Business Days before the first day of that period, unless market practice differs in the Relevant Interbank Market, in which case the Quotation Day for that currency will be determined by the Agent in accordance with market practice in the Relevant Interbank Market (and if quotations would normally be given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Day will be the last of those days).

 

RBI Regulations means the Foreign Exchange Management (Transfer or Issue of Security to Persons Resident outside India) Regulations, 2000, as amended from time to time, read together with the "Master Circular for Foreign Investment in India" issued by the Reserve Bank of India from time to time.

 

Receiver means a receiver or receiver and manager or administrative receiver of the whole or any part of the Charged Property.

 

Related Fund in relation to a fund (the first fund), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.

 

Relevant Interbank Market means the London interbank market.

 

Relevant Jurisdiction means, in relation to a member of the Group:

 

 

 

 

(a)

its Original Jurisdiction;

 

 

(b)

any jurisdiction where any asset subject to or intended to be subject to the Transaction Security to be created by it is situated;

 

 

(c)

any jurisdiction where it conducts its business; and

 

 

(d)

the jurisdiction whose laws govern the perfection of any of the Transaction Security Documents entered into by it.

 

Relevant Period has the meaning given to that term in Clause 22.1 (Financial definitions).

 

Repayment Date means a Term Facility Repayment Date or the last day of an Interest Period for a Revolving Facility Loan.

 

Repayment Instalment has the meaning given to that term in paragraph (a) of Clause 6.1 (Repayment of Term Loans).

 

Repeating Representations means each of the representations set out in Clause 20.2 (Status) to Clause 20.7 (Governing law and enforcement), Clause 20.10 (No default), Clause 20.11 (No misleading information), paragraphs (e) to (g) of Clause 20.12 (Original Financial Statements), Clause 20.17 (Anti-corruption law), Clause 20.18 (Sanctions and Anti-Money Laundering), Clause 20.20 (Ranking) to Clause 20.22 (Legal and beneficial ownership), Clause 20.33 (United States laws) and Clause 20.34 (ERISA and Multiemployer Plans).

 

Representative means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.

 

Resignation Letter means a letter substantially in the form set out in Schedule 7 (Form of Resignation Letter).

 

Resolution Authority means any body which has authority to exercise any Write-down and Conversion Powers.

 

Restricted Transferee means: (a) any hedge fund, vulture fund, mezzanine or distressed debt fund, or any trust, fund or entity (or the trading desk of any bank or financial institution), which principally invests in distressed debt or a private equity fund; and (b) competitors of a member of the Group.

 

Restricted Party means a person that is:

 

 

(a)

a government of a Sanctioned Country;

 

 

(b)

an agency or instrumentality of, or an entity directly or indirectly owned or controlled by, a government of a Sanctioned Country;

 

 

(c)

listed on, or owned or controlled by a person listed on, a Sanctions List, or a person acting on behalf of such a person;

 

 

(d)

resident, domiciled or located in, operating from, or organised or incorporated under the laws of a Sanctioned Country or any country or territory that is the subject of country- or territory wide Sanctions, or a person who is owned or controlled by, or acting on behalf of such a person; or

 

 

 

 

(e)

otherwise a subject of Sanctions (which includes, without limitation, a person with whom a US person or other national of a country which is a Sanctions Authority would be prohibited or restricted by law from engaging in trade, business or other activities).

 

Retained Excess Cashflow means Excess Cashflow which is not required to be applied in making any prepayment under the Finance Documents.

 

Revolving Facility means the revolving credit facility made available under this Agreement as described in paragraph (a)(ii) of Clause 2.1 (The Facilities).

 

Revolving Facility Commitment means:

 

 

(a)

in relation to an Original Lender, the amount set opposite its name under the heading "Revolving Facility Commitment" in Part 2 of Schedule 1 (The Original Parties) and the amount of any other Revolving Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase); and

 

 

(b)

in relation to any other Lender, the amount of any Revolving Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase),

 

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

 

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

 

Rollover Loan means one or more Revolving Facility Loans:

 

 

(a)

made or to be made on the same day that a maturing Revolving Facility Loan is due to be repaid;

 

 

(b)

the aggregate amount of which is equal to or less than the amount of the maturing Revolving Facility Loan;

 

 

(c)

in the same currency as the maturing Revolving Facility Loan; and

 

 

(d)

made or to be made to the same Borrower for the purpose of refinancing that maturing Revolving Facility Loan.

 

Sanctioned Country means any country or other territory subject to a general export, import, financial or investment embargo under any Sanctions, which, as of the date of this Agreement, include Cuba, Iran, Myanmar, North Korea, South Sudan, Sudan, and Syria.

 

Sanctions means any trade, economic or financial sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by a Sanctions Authority.

 

Sanctions Authority means:

 

 

(a)

the Security Council of the United Nations;

 

 

(b)

the United States of America;

 

 

(c)

the European Union and its member states;

 

 

(d)

the UK;

 

 

 

 

(e)

Singapore; and

 

 

(f)

the governments and official institutions or agencies of any of paragraphs (a) to (e) above, including OFAC, the US Department of State, Her Majesty's Treasury and the Monetary Authority of Singapore.

 

Sanctions List means the Specially Designated Nationals and Blocked Persons list maintained by OFAC, the Consolidated List of Financial Sanctions Targets and the Investment Ban List maintained by Her Majesty's Treasury, or any similar list maintained by, or public announcement of a Sanctions designation made by, a Sanctions Authority, each as amended, supplemented or substituted from time to time.

 

Screen Rate means the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed on pages LIBOR01 or LIBOR02 of the Bloomberg screen (or any replacement Bloomberg page which displays that rate), on the appropriate page of such other information service which publishes that rate from time to time in place of Bloomberg. If such page or service ceases to be available, the Agent may specify another page or service displaying the relevant rate after consultation with the Company.

 

Secured Obligations shall bear the same meaning as in paragraph 2(b) of Schedule 11 (Agreed Security Principles).

 

Secured Parties means each Finance Party from time to time party to this Agreement and any Receiver or Delegate.

 

Secured Party Claim has the meaning given to that term in paragraph (a) of Clause 33.2 (Security Agent as holder of security).

 

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

 

Security Agent Claim has the meaning given to that term in paragraph (a) of Clause 33.2 (Security Agent as holder of security).

 

Security Provider means:

 

 

(a)

the Parent;

 

 

(b)

the Company;

 

 

(c)

Target;

 

 

(d)

a Third Party Security Provider;

 

 

(e)

each other Obligor not listed in paragraphs (a) to (c) above; or

 

 

(f)

any other person granting, evidencing or creating security over any of its asset to secure any obligation of any Obligor to a Secured Party under the Finance Documents, including, without limitation, in respect of those Transaction Security Documents set out in paragraph 3(a) (Transaction Security Documents) of Part 1 of Schedule 2 (Conditions Precedent and Conditions Subsequent), paragraph 2(a) of Part 2 of Schedule 2 (Conditions Precedent and Conditions Subsequent), paragraph 2(a) of Part 3 of Schedule 2 (Conditions Precedent and Conditions Subsequent), paragraph 2(a) of Part 4 of Schedule 2 (Conditions Precedent and Conditions Subsequent) and pargraph 19 of Part 5 of Schedule 2 (Conditions Precedent and Conditions Subsequent).

 

 

 

Selection Notice means a notice substantially in the form set out in Part 2 of Schedule 3 (Requests and Notices) given in accordance with Clause 11 (Interest Periods) in relation to the Term Facility.

 

Senior Management means the Group Chief Executive Officer.

 

Separate Loan has the meaning given to it in paragraph (c) of Clause 6.2 (Repayment of Revolving Facility Loans).

 

Singapore means the Republic of Singapore.

 

Singapore Companies Act means the Companies Act (Chapter 50) of Singapore. South African Companies Act means the Companies Act, 2008 of South Africa. South African Security Provider means Main Street 741 Proprietary Limited.

South African Share Pledge has the meaning given to it in para 3(a) of Part 1 of Schedule 2 (Conditions Precedent (Utilisation).

 

Specified Time means a time determined in accordance with Schedule 10 (Timetables).

 

Sponsor Affiliate means the Investors, each of their Affiliates, any trust of which any Investor or any of its Affiliates is a trustee, any partnership of which any Investor or any of its Affiliates is a partner and any trust, fund or other entity which is managed by, or is under the control of, any Investor or any of its Affiliates provided that any such trust, fund or other entity which has been established for at least six months solely for the purpose of making, purchasing or investing in loans or debt securities and which is managed or controlled independently from all other trusts, funds or other entities managed or controlled by any Investor or any of its Affiliates which have been established for the primary or main purpose of investing in the share capital of companies shall not constitute a Sponsor Affiliate.

 

Startek means Startek, Inc., a company incorporated in Delaware with Delaware organisational identification number 2670773 and registered office address at 6200 S. Syracuse Way, Suite 485 Greenwood Village, Colorado 80111.

 

Startek Honduras Non-registrable Assets Movable Guarantee has the meaning given to it in para 2(a) of Part 2 of Schedule 2 (Conditions Precedent (Utilisation).

 

Startek Honduras Registrable Assets Movable Guarantee has the meaning given to it in para 2(a) of Part 2 of Schedule 2 (Conditions Precedent (Utilisation).

 

Startek Honduras Share Movable Guarantee has the meaning given to it in para 1(a) of Part 3 of Schedule 2 (Conditions Precedent (Utilisation).

 

Startek Philippines means Startek Philippines Inc., a company incorporated in the Philippines with SEC identification number CS201202082 and TIN number 008-210-117-000 and registered office address at SM Makati Cyberzone Building, 69 Jupiter Street, Bel-Air Village Makati City 1209, Philippines.

 

State-Owned Entity means any government or state-owned or controlled entity, instrumentality or department where the government or state has 50% or more ownership, board or voting control, or is

 

 

 

otherwise deemed to have a golden share, or the power to veto key shareholder decisions (including, without limitation, sovereign wealth funds, state controlled utilities and hospitals, pension funds, and central banks) and/or any other parties determined to be a public "sovereign entity," "government entity," or "public entity," or the like, under local law.

 

Subordination Agreement means a subordination agreement in form and substance satisfactory to the Agent (acting on the instructions of the Majority Lenders).

 

Subsidiary means, in relation to any company or corporation, a company or corporation:

 

 

(a)

which is controlled, directly or indirectly, by the first mentioned company or corporation;

 

 

(b)

more than half the issued equity share capital of which is beneficially owned, directly or indirectly, by the first mentioned company or corporation; or

 

 

(c)

which is a Subsidiary of another Subsidiary of the first mentioned company or corporation,

 

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

 

Swap Obligation means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a "swap" within the meaning of section 1a(47) of the Commodity Exchange Act.

 

Syndication Date means the day on which the MLABs confirms (including to the Agent) that the primary syndication of the Facilities has been completed.

 

Target means ESM Holdings Limited, a company incorporated under the laws of Mauritius with company number C119881 C1/GBL and registered address at 5th Floor, Ebene Esplanade, 24 Bank Street, Cybercity, Ebene, Mauritius.

 

Target Group means the Target and each of its respective Subsidiaries.

 

Target Group Entity (India) means Aegis Customer Support Services Private Limited, a company incorporated under the laws of India with company number U74999MH2017PTC291578 and registered address at Equinox Business Park, Tower 3, LBS Road, Kurla West, Mumbai 400071.

 

Target Shares means all of the shares in the Target.

 

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

 

Term Facility means the term loan facility made available under this Agreement as described in paragraph (a)(i) of Clause 2.1 (The Facilities) or Clause 2.2 (Increase).

 

Term Facility Commitment means:

 

 

(a)

in relation to an Original Lender, the amount set opposite its name under the heading "Term Facility Commitment" in Part 2 of Schedule 1 (The Original Parties) and the amount of any other Term Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase) or Clause 2.3 (Default Increase); and

 

 

 

 

(b)

in relation to any other Lender, the amount of any Term Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase) or Clause 2.3 (Default Increase),

 

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

 

Term Facility Repayment Date means each date set out in Clause 6.1 (Repayment of Term Loans).

 

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

 

Termination Date means:

 

 

(a)

in the case of the Term Loan (other than one referred to in paragraph (b) below), the date which is 60 Months after the first Utilisation Date;

 

 

(b)

in the case of a Term Loan made available under Clause 2.2 (Increase), the Termination Date agreed in accordance with Clause 2.2 (Increase); and

 

 

(c)

in the case of a Revolving Facility Loan, the date which is 60 Months after the first Utilisation Date in respect of the Term Loan.

 

Third Party Security Provider means each of:

 

 

(a)

the Bermudian Security Provider;

 

 

(b)

the Dutch Security Provider;

 

 

(c)

the South African Security Provider; and

 

 

(d)

the Australian Security Provider.

 

Total Cash and Cash Equivalent Investments means, at any time, the aggregate of:

 

 

(a)

the aggregate amount of all Cash and Cash Equivalent Investments held by wholly owned members of the Group; and

 

 

(b)

the aggregate amount of all Attributable Cash and Cash Equivalent Investments held by Non-Wholly Owned Entities.

 

Total Commitments means the aggregate of the Total Term Facility Commitments and the Total Revolving Facility Commitments, being US$185,000,000 at the date of this Agreement.

 

Total Term Facility Commitments means the aggregate of the Term Facility Commitments, being US$165,000,000 at the date of this Agreement.

 

Total Revolving Facility Commitments means the aggregate of the Revolving Facility Commitments, being US$20,000,000 at the date of this Agreement.

 

Transaction Security means the Security created or expressed to be created in favour of the Security Agent or Secondary Security Agent (as applicable) pursuant to the Transaction Security Documents.

 

Transaction Security Documents means each of the documents listed as being a Transaction Security Document in paragraph 3(a) of Part 1 of Schedule 2 (Conditions Precedent and Conditions Subsequent), paragraph 2(a) of Part 2 of Schedule 2 (Conditions Precedent and Conditions

 

 

 

Subsequent), paragraph 2(a) of Part 3 of Schedule 2 (Conditions Precedent and Conditions Subsequent), paragraph 2(a) of Part 4 of Schedule 2 (Conditions Precedent and Conditions Subsequent), any document required to be delivered to the Agent under paragraph 19 of Part 5 of Schedule 2 (Conditions Precedent and Conditions Subsequent), together with any other document entered into by any Obligor creating or expressed to create any Security over all or any part of its assets in respect of the obligations of any of the Obligors under any of the Finance Documents.

 

Transfer Certificate means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Agent and the Company.

 

Transfer Date means, in relation to an assignment or a transfer, the later of:

 

 

(a)

the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and

 

 

(b)

the date on which the Agent executes the relevant Assignment Agreement or Transfer Certificate.

 

Treasury Transactions means any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price.

 

UK Bail-In Legislation means (to the extent that the United Kingdom is not an EEA Member Country which has implemented, or implements, Article 55 BRRD) Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).

 

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

 

US means the United States of America.

 

USA Patriot Act means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56.

 

US Bankruptcy Law means the United States Bankruptcy Code, as amended, or any other United States Federal or State bankruptcy, insolvency or similar law.

 

US GAAP means generally accepted accounting principles the United States of America.

 

US Guarantor means any Guarantor that is incorporated or organized under the laws of the United States of America or any State of the United States of America (including the District of Columbia) or that has a place of business or property in the United States of America.

 

US Obligor means any Obligor that is incorporated or organized under the laws of the United States of America or any State of the United States of America (including the District of Columbia) or that has a place of business or property in the United States of America.

 

US Tax Obligor means:

 

 

(a)

a Borrower which is resident for tax purposes in the US; or

 

 

(b)

an Obligor some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.

 

Utilisation means a Loan.

 

 

 

Utilisation Date means the date of a Utilisation, being the date on which the relevant Loan is to be made is to be issued.

 

Utilisation Request means a notice substantially in the relevant form set out in Part 1 of Schedule 3 (Requests and Notices).

 

Write-down and Conversion Powers means:

 

 

(a)

in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule;

 

 

(b)

in relation to any other applicable Bail-In Legislation:

 

 

(i)

any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and

 

 

(ii)

any similar or analogous powers under that Bail-In Legislation; and

 

 

(c)

in relation to any UK Bail-In Legislation:

 

 

(i)

any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of those powers; and

 

 

(ii)

any similar or analogous powers under that UK Bail-In Legislation.

 

 

1.2

Construction

 

 

(a)

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

 

 

(i)

the Agent, the MLABs, any Finance Party, any Hedge Counterparty, any Lender, any Obligor, any Party, any Secured Party, the Security Agent, the Secondary Security Agent or any other person shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents and, in the case of the Security Agent, any person for the time being appointed as Security Agent or Security Agents in accordance with the Finance Documents;

 

 

(ii)

a document in agreed form is a document which is previously agreed in writing by or on behalf of the Company and the Agent or, if not so agreed, is in the form specified by the Agent;

 

 

 

 

(iii)

assets includes present and future properties, revenues and rights of every description;

 

 

(iv)

a Finance Document or a Transaction Document or any other agreement or instrument is a reference to that Finance Document or Transaction Document or other agreement or instrument as amended, novated, supplemented, extended or restated;

 

 

(v)

a group of Lenders includes all the Lenders;

 

 

(vi)

guarantee means (other than in Clause 19 (Guarantee and Indemnity)) any guarantee, letter of credit, 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;

 

 

(vii)

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

 

 

(viii)

a person includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);

 

 

(ix)

a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;

 

 

(x)

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

 

 

(xi)

a time of day is a reference to Singapore time.

 

 

(b)

Clause and Schedule headings are for ease of reference only.

 

 

(c)

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

 

 

(d)

A Default (other than an Event of Default) is continuing if it has not been remedied or waived and an Event of Default is continuing if it has not been waived.

 

 

(e)

An Ipso Facto Event is continuing if the relevant Ipso Facto Event has occurred and the proceedings have not been unconditionally discharged, withdrawn or dismissed.

 

 

(f)

Currency symbols and definitions:

 

 

(i)

US$, USD and US dollars denote the lawful currency of the United States of America;

 

 

(ii)

, euros and EUR denote the single currency of the Participating Member States; and

 

 

(iii)

S$ and Singapore dollars denote the lawful currency of Singapore.

 

 

(g)

Any reference in any of the Finance Documents to Permitted Security is not intended to subordinate or postpone, and shall not be interpreted as subordinating or postponing, or as any agreement to subordinate or postpone, any Security created by any of the Finance Documents to any Permitted Security.

 

 

 

 

(h)

In this Agreement, where it relates to any Australian Obligor or if the Australian PPSA applies, a reference to a "security interest" or Quasi Security includes a "security interest" as defined in sections 12(1) or 12(2) of the Australian PPSA.

 

 

(i)

Unless a contrary indication appears, a reference to an act or right of the Agent or Security Agent (as applicable) is a reference to an act or right of the Agent or Security Agent (as applicable) acting on the instructions of the Majority Lenders.

 

 

1.3

Third party rights

 

 

(a)

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

 

 

(b)

Notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.

 

 

1.4

Dutch terms

 

In this Agreement, where it relates to a Dutch person or the context so requires, a reference to:

 

 

(i)

The Netherlands means the European part of the Kingdom of the Netherlands and Dutch means in or of The Netherlands;

 

 

(ii)

works council means each works council (ondernemingsraad) or central or group works council (centrale of groeps ondernemingsraad) having jurisdiction over that person;

 

 

(iii)

a necessary action to authorise includes any action required to comply with the Works Councils Act of The Netherlands (Wet op de ondernemingsraden), followed by a neutral or positive advice (advies) from the works council of that person which, if conditional, contains conditions which can reasonably be complied with and would not cause and are not reasonably likely to cause a breach of any term of any Transaction Document;

 

 

(iv)

financial assistance includes any act contemplated by Section 2:98c of the Dutch Civil Code;

 

 

(v)

constitutional documents means the articles of association (statuten) and deed of incorporation (akte van oprichting) and an up-to-date extract of registration of the Trade Register of the Dutch Chamber of Commerce;

 

 

(vi)

a security interest or security includes any mortgage (hypotheek), pledge (pandrecht), retention of title arrangement (eigendomsvoorbehoud), right of retention (recht van retentie), right to reclaim goods (recht van reclame) and any right in rem (beperkt recht) created for the purpose of granting security (goederenrechtelijke zekerheid);

 

 

(vii)

a winding-up, administration or dissolution includes declared bankrupt (failliet verklaard) or dissolved (ontbonden);

 

 

(viii)

a moratorium includes surseance van betaling and a moratorium is declared includes surseance verleend;

 

 

(ix)

any procedure or step taken in connection with insolvency proceedings includes that person having filed a notice under Section 36 of the Tax Collection Act of The Netherlands (Invorderingswet 1990);

 

 

 

 

(x)

a liquidator includes a curator or a beoogd curator;

 

 

(xi)

an administrator includes a bewindvoerder or a beoogd bewindvoerder; and

 

 

(xii)

an attachment includes a beslag.

 

 

2.

THE FACILITIES

 

 

2.1

The Facilities

 

 

(a)

Subject to the terms of this Agreement, the Lenders make available:

 

 

(i)

a US dollar term loan facility in an aggregate amount equal to the Total Term Facility Commitments; and

 

 

(ii)

a US dollar revolving credit facility in an aggregate amount equal to the Total Revolving Facility Commitments.

 

 

(b)

The Term Facility will be available only to the Company and the Revolving Facility will be available to the Company and any Additional Borrower.

 

 

2.2

Increase

 

 

(a)

The Company may by, giving not less than 60 days' prior notice to the Agent, request that the Term Facility Commitments be increased (and the Term Facility Commitments shall be so increased) by an amount which, when aggregated with the amount of any previous increase of the Term Facility Commitments under this Clause 2.2, does not exceed US$30,000,000 as follows:

 

 

(i)

the increased Term Facility Commitments will be assumed by one or more Lenders or other banks, financial institutions, trusts, funds or other entities (each an Increase Lender) selected by the Company (each of which shall not be a Sponsor Affiliate or a member of the Group) and each of which must have confirmed in writing (whether in the relevant Increase Confirmation or otherwise) its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the increased Term Facility Commitments which it is to assume, as if it had been an Original Lender;

 

 

(ii)

each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender been an Original Lender;

 

 

(iii)

each Increase Lender shall become a Party as a "Lender" and any Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender;

 

 

(iv)

the Term Facility Commitments of the other Lenders shall continue in full force and effect; and

 

 

(v)

any increase in the Term Facility Commitments shall take effect on the date specified by the Company in the notice referred to above or any later date on which the conditions set out in paragraph (b) below are satisfied.

 

 

(b)

Subject to paragraph (d) below, an increase in the Term Facility Commitments will only be effective on:

 

 

 

 

(i)

the execution by the Agent of an Increase Confirmation from the relevant Increase Lender;

 

 

(ii)

to the extent applicable, the Agent receiving from the Company a copy of the application to, and approval of, the Financial Surveillance Department of the South African Reserve Bank in connection with the transactions contemplated under this Clause 2.2 in form and substance satisfactory to the Agent (acting on the instructions of the Majority Lenders); and

 

 

(iii)

in relation to an Increase Lender which is not a Lender immediately prior to the relevant increase, the Agent being satisfied that it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Lender.

 

The Agent shall promptly notify the Parent and the Increase Lender upon the conditions in paragraphs (i) and (ii) above being satisfied.

 

(c)

No Lender is under any obligation to become an Increase Lender and does so at its own discretion.

 

 

(d)

An increase in the Term Facility Commitments will be subject to and conditional upon the following conditions:

 

 

(i)

the Company delivering a certificate to the Agent in form and substance satisfactory to the Agent certifying that the financial covenants set out in Clause 22 (Financial Covenants) required to be complied with for the most recent Relevant Period in respect of which financial statements and a Compliance Certificate have been delivered to the Agent would have been complied if recalculated for that most recent Relevant Period (on a pro forma basis after taking into account the Financial Indebtedness in respect of the increased Term Facility Commitments as if all of those increased Term Facility Commitments had been utilised in full at the end of that most recent Relevant Period);

 

 

(ii)

the total yield on the Term Loans made available pursuant to this Clause 2.2 does not exceed

0.5 per cent. above the yield on the Term Loan (based on the highest fee paid during primary syndication of the Facilities);

 

 

(iii)

the Term Loans made available pursuant to this Clause 2.2 shall have a maturity date which is after the Termination Date for the Term Loan made on the first Utilisation Date and a weighted average life to maturity which is longer than of the remaining average life to maturity of the Term Loan made on the first Utilisation Date;

 

 

(iv)

no Default shall have occurred and be continuing or would occur as a result of a Utilisation of a Term Loan made available pursuant to this Clause 2.2;

 

 

(v)

each Borrower applies all amounts borrowed by it under this Clause 2.2 towards Permitted Acquisitions;

 

 

(vi)

each Obligor having entered into such guarantee and security confirmations and/or confirmatory security as may be reasonably requested by the Agent (acting on the instructions of the Majority Lenders); and

 

 

(vii)

the MLABs shall have been given a first right of refusal and right to match, to participate as an Increase Lender provided, for the avoidance of doubt, that the Company may select lenders at its discretion on the basis of the most competitive pricing.

 

The Agent is authorised to enter into, on behalf of each of the Finance Parties, documentation required to reflect these altered terms.

 

 

 

 

(e)

Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective.

 

 

(f)

The Company shall promptly on demand pay the Agent and the Security Agent the amount of all costs and expenses (including legal fees) properly incurred by either of them and, in the case of the Security Agent, by any Receiver or Delegate in connection with any increase in Commitments under this Clause 2.2.

 

 

(g)

The Increase Lender shall, on the date upon which the increase takes effect, pay to the Agent (for its own account) a fee in an amount equal to the fee which would be payable under Clause 27.3 (Assignment or transfer fee) if the increase was a transfer pursuant to Clause 27.5 (Procedure for transfer) and if the Increase Lender was a New Lender.

 

 

(h)

The Company may pay to the Increase Lender a fee in the amount and at the times agreed between the Company and the Increase Lender in a Fee Letter.

 

 

(i)

Clause 27.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 in relation to an Increase Lender as if references in that Clause to:

 

 

(i)

an Existing Lender were references to all the Lenders immediately prior to the relevant increase;

 

 

(ii)

the New Lender were references to that Increase Lender; and

 

 

(iii)

a re-transfer and re-assignment were references to respectively a transfer and assignment.

 

 

2.3

Default Increase

 

 

(a)

The Company may by giving prior notice to the Agent by no later than the date falling five Business Day after the effective date of a cancellation of:

 

 

(i)

the Available Commitments of a Defaulting Lender in accordance with paragraph (d) of Clause 7.5 (Right of cancellation and repayment in relation to a single Lender); or

 

 

(ii)

the Commitments of a Lender in accordance with:

 

 

(A)

Clause 7.1 (Illegality); or

 

 

(B)

paragraph (a) of Clause 7.5 (Right of cancellation and repayment in relation to a single Lender),

 

request that the Commitments relating to any Facility be increased (and the Commitments relating to that Facility shall be so increased) in an aggregate US dollar amount of up to the amount of the Available Commitments or Commitments relating to that Facility so cancelled as follows:

 

 

I.

the increased Commitments will be assumed by one or more Lenders or other banks, financial institutions, trusts, funds or other entities (each a Default Increase Lender) selected by the Company (each of which shall not be a member of the Group) and each of which confirms in writing (whether in the relevant Default Increase Confirmation or otherwise) its willingness to assume and does

 

 

 

assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender;

 

 

II.

each of the Obligors and any Default Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Default Increase Lender would have assumed and/or acquired had the Default Increase Lender been an Original Lender;

 

 

III.

each Default Increase Lender shall become a Party as a Lender and any Default Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Default Increase Lender and those Finance Parties would have assumed and/or acquired had the Default Increase Lender been an Original Lender;

 

 

IV.

the Commitments of the other Lenders shall continue in full force and effect; and

 

 

V.

any increase in the Commitments relating to a Facility shall take effect on the date specified by the Company in the notice referred to above or any later date on which the conditions set out in paragraph

 

(b)

below are satisfied.

 

 

(b)

An increase in the Commitments relating to a Facility will only be effective on:

 

 

(i)

the execution by the Agent of a Default Increase Confirmation from the relevant Default Increase Lender;

 

 

(ii)

in relation to a Default Increase Lender which is not a Lender immediately prior to the relevant increase, being satisfied that it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Default Increase Lender; and

 

 

(iii)

each Obligor having entered into such guarantee and security confirmations and/or confirmatory security as may be reasonably requested by the Agent.

 

The Agent shall promptly notify the Company and the Default Increase Lender upon the conditions in paragraphs (i) and (ii) above being satisfied.

 

 

(c)

Each Default Increase Lender, by executing the Default Increase Confirmation, confirms (for the avoidance of doubt) that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective.

 

 

(d)

The Default Increase Lender shall, on the date upon which the increase takes effect, pay to the Agent (for its own account) a fee in an amount equal to the fee which would be payable under Clause 27.3 (Assignment or transfer fee) if the increase was a transfer pursuant to Clause 27.5 (Procedure for transfer) and if the Default Increase Lender was a New Lender.

 

 

(e)

Clause 27.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.3 in relation to a Default Increase Lender as if references in that Clause to:

 

 

 

 

(i)

an Existing Lender were references to all the Lenders immediately prior to the relevant increase;

 

 

(ii)

the New Lender were references to that Default Increase Lender; and

 

 

(iii)

a re-transfer and re-assignment were references to respectively a transfer and assignment.

 

 

2.4

Finance Parties' rights and obligations

 

 

(a)

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

 

 

(b)

The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party's participation in a Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor.

 

 

(c)

A Finance Party may, except as specifically stated in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.

 

 

2.5

Obligors' Agent

 

 

(a)

Each Obligor (other than the Company) by its execution of this Agreement or an Accession Deed irrevocably appoints the Company (acting through one or more authorised signatories) to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:

 

 

(i)

the Company on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions (including, in the case of a Borrower, Utilisation Requests), to execute on its behalf any Accession Deed, to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Obligor notwithstanding that they may affect the Obligor, without further reference to or the consent of that Obligor; and

 

 

(ii)

each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Company,

 

and in each case the Obligor shall be bound as though the Obligor itself had given the notices and instructions (including, without limitation, any Utilisation Requests) or executed or made the agreements or effected the amendments, supplements or variations, or received the relevant notice, demand or other communication.

 

 

(b)

Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Obligors' Agent or given to the Obligors' Agent under any Finance Document on behalf of another Obligor or in connection with any Finance Document (whether or not known to any other Obligor and whether occurring before or after such other Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it. In the event of any

 

 

 

conflict between any notices or other communications of the Obligors' Agent and any other Obligor, those of the Obligors' Agent shall prevail.

 

 

3.

PURPOSE

 

 

3.1

Purpose

 

 

(a)

The Company shall apply all amounts borrowed by it under the Term Facility (other than a Term Loan made available pursuant to Clause 2.2 (Increase), which must be applied for the purposes set out in that clause) towards:

 

 

(i)

financing the repayment or prepayment of all outstanding amounts under the Existing Loan Facilities Agreement (other than the outanding Revolving Facility Loans thereunder);

 

 

(ii)

funding the Debt Service Reserve Account in an amount equal to the applicable Debt Service Reserve Amount;

 

 

(iii)

payment of any fees and expenses relating to the establishment of the Facilities; and

 

 

(iv)

[***],

 

as described in the Funds Flow Statement.

 

 

(b)

Each Borrower shall apply all amounts borrowed by it under the Revolving Facility towards the working capital purposes of the Group (other than any member of the Group incorporated in India) including repayment or prepayment of the outstanding Revolving Facility Loans (under and as defined under the Existing Loan Facilities Agreement) but not towards Permitted Acquisitions, acquisitions of companies, businesses or undertakings or prepayment or repayment of any Term Loan.

 

 

3.2

Monitoring

 

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

 

 

4.

CONDITIONS OF UTILISATION

 

 

4.1

Initial conditions precedent

 

 

(a)

The Lenders will only be obliged to comply with Clause 5.4 (Lenders' participation) in relation to any Utilisation if on or before the Utilisation Date for that Utilisation, the Agent has received all of the documents and other evidence listed in Part 1 of Schedule 2 (Conditions Precedent and Conditions Subsequent), in each case, in form and substance satisfactory to the Agent (acting on the instructions of the Lenders) and the Agent (acting on the instructions of the Lenders) is satisfied that, on the first Utilisation Date and the Conditions Subsequent (Phase 1) Deadline, it will receive all of the documents and evidence listed in Clause 23.35(a)(i) (Conditions subsequent) and Part 2 of Schedule 2 (Conditions Precedent and Conditions Subsequent). The Agent shall notify the Company and the Lenders promptly upon receipt of such documents and evidence.

 

 

(b)

Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (a) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.

 

 

 

 

4.2

Further conditions precedent

 

Subject to Clause 4.1 (Initial conditions precedent), the Lenders will only be obliged to comply with Clause 5.4 (Lenders' participation) in relation to a Utilisation other than one to which Clause 5 (UtilisationError! Reference source not found.) applies, if on the date of the Utilisation Request and on the proposed Utilisation Date:

 

 

(a)

in the case of a Rollover Loan, no Event of Default is continuing or would result from the proposed Loan, and in the case of any other Utilisation, no Default is continuing or would result from the proposed Utilisation;

 

 

(b)

in relation to a Utilisation on the first Utilisation Date, Opening Net Leverage Ratio requirement has been complied with; and

 

 

(c)

in relation to any Utilisation on any Utilisation Date, all the representations and warranties in Clause 20 (Representations) or, in relation to any other Utilisation, the Repeating Representations to be made by each Obligor are true.

 

 

4.3

Maximum number of Utilisations

 

 

(a)

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

 

 

(i)

more than one Term Loan (other than a Term Loan made available pursuant to Clause 2.2 (Increase)) would be outstanding;

 

 

(ii)

more than two Term Facilities made available pursuant to Clause 2.2 (Increase) would be outstanding;

 

 

(iii)

(in respect of any specific Permitted Acquisition funded by a Term Facility made available pursuant to Clause 2.2 (Increase)) more than two Utilisations would be made available to fund such Permitted Acquisition; or

 

 

(iv)

more than eight Revolving Facility Loans would be outstanding.

 

 

(b)

A Borrower (or the Company) may not request that the Term Loan be divided if, as a result of the proposed division, more than two Term Loans would be outstanding.

 

 

(c)

Any Separate Loan shall not be taken into account in this Clause 4.3.

 

 

5.

UTILISATION

 

 

5.1

Delivery of a Utilisation Request

 

A Borrower may utilise a Facility by delivery by that Borrower (or the Company on its behalf) to the Agent of a duly completed Utilisation Request not later than the Specified Time or such shorter period as may be agreed between the Company and the Agent (acting on the instructions of the Lenders).

 

 

5.2

Completion of a Utilisation Request

 

 

(a)

Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:

 

 

(i)

it identifies the Facility to be utilised and specifies the relevant Borrower (being in the case of a Term Loan, the Company and, in the case of a Revolving Facility Loan, the Company or an Additional Borrower which is permitted under this Agreement to borrow a Revolving Facility Loans);

 

 

 

 

(ii)

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

 

 

(iii)

the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount); and

 

 

(iv)

the proposed Interest Period complies with Clause 11 (Interest Periods).

 

 

(b)

Only one Utilisation may be requested in each Utilisation Request.

 

 

5.3

Currency and amount

 

 

(a)

The currency specified in a Utilisation Request must be:

 

 

(i)

in relation to the Term Facility, US dollars; and

 

 

(ii)

in relation to the Revolving Facility, US dollars.

 

 

(b)

The amount of the proposed Utilisation must be:

 

 

(i)

for the Term Facility, US$165,000,000; or

 

 

(ii)

for the Revolving Facility denominated in US dollars, a minimum of US$1,000,000 or, if less, the Available Facility.

 

 

5.4

Lenders' participation

 

 

(a)

If the conditions set out in this Agreement have been met, and subject to Clause 6.2 (Repayment of Revolving Facility Loans), each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.

 

 

(b)

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

 

 

5.5

Limitations on Utilisations

 

 

(a)

The Revolving Facility may not be utilised unless the Term Facility has been previously utilised or the Term Facility will be utilised concurrently with the first Utilisation of the Revolving Facility for the purposes of refinancing the outstanding Revolving Facility Loans (under and as defined in the Existing Loan Facilities Agreement).

 

 

(b)

The Term Facility (other than a Term Loan made available pursuant to Clause 2.2 (Increase) or Clause 2.3 (Default Increase)) may only be utilised on the first Utilisation Date.

 

 

5.6

Cancellation of Commitment

 

 

(a)

The Term Facility Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period for the Term Facility.

 

 

(b)

The Revolving Facility Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period for the Revolving Facility.

 

 

5.7

Clean down

 

The Company shall ensure that the aggregate of the amounts of:

 

 

 

 

(a)

all Revolving Facility Loans; less

 

 

(b)

without double-counting, the aggregate of the Total Cash and Cash Equivalent Investments of the Group (other than (i) Cash held in a Mandatory Prepayment Account, a Holding Account or the Debt Service Reserve Account; and (ii) Cash held by any member of the Group incorporated in India which represents utilisations of the Indian Working Capital Facilities),

 

(as confirmed in a certificate signed by a director of the Company provided to the Agent within ten Business Days after the end of each Financial Year) shall not exceed zero for a period of not less than five successive Business Days in each of Startek's Financial Years. Not less than 30 days and no more than 364 days shall elapse between two such periods.

 

 

6.

REPAYMENT

 

 

6.1

Repayment of Term Loans

 

(a)

The Company shall repay the aggregate Term Loans in instalments (each a Repayment Instalment) by repaying on each Term Facility Repayment Date an amount which reduces the amount of the outstanding aggregate Term Loans by an amount equal to the relevant percentage of all the Term Loans (as at the close of business in Hong Kong on the last day of the Availability Period in relation to the Term Facility) as set out in the table below:

 

 

Term Facility Repayment Date (number of Months after the first Utilisation Date)

Repayment Instalment

   

21

2.5%

   

24

2.5%

   

27

3.75%

   

30

3.75%

   

33

3.75%

   

36

3.75%

   

39

5%

   

42

5%

   

45

5%

   

48

5%

   

51

5%

   

54

10%

   

57

15%

   

Termination Date

All amounts then outstanding

 

 

 

 

6.2

Repayment of Revolving Facility Loans

 

 

(a)

Each Borrower which has drawn a Revolving Facility Loan shall repay that Loan on the last day of its Interest Period or, if earlier, the Termination Date.

 

 

(b)

Without prejudice to each Borrower's obligation under paragraph (a) above, if:

 

 

(i)

one or more Revolving Facility Loans are to be made available to a Borrower (in each case, a New Revolving Facility Loan):

 

 

(A)

on the same day that a maturing Revolving Facility Loan (in each case, a Maturing Revolving Facility Loan) is due to be repaid by that Borrower;

 

 

(B)

in the same currency as the Maturing Revolving Facility Loan; and

 

 

(C)

in whole or in part for the purpose of refinancing the Maturing Revolving Facility Loan; and

 

the proportion borne by each Lender's participation in the Maturing Revolving Facility Loan to the amount of that Maturing Revolving Facility Loan is the same as the proportion borne by that Lender's participation in the New Revolving Facility Loans to the aggregate amount of those New Revolving Facility Loans,

 

 

(ii)

the aggregate amount of the New Revolving Facility Loans shall, unless the relevant Borrower or the Company notifies the Agent to the contrary in the relevant Utilisation Request, be treated as if applied in or towards repayment of the Maturing Revolving Facility Loan so that:

 

 

(A)

if the amount of the Maturing Revolving Facility Loan exceeds the aggregate amount of the New Revolving Facility Loans:

 

 

I.

the relevant Borrower will only be required to make a payment under Clause 40.1 (Payments to the Agent) in an amount in the relevant currency equal to that excess; and

 

 

II.

each Lender's participation in the New Revolving Facility Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation in the Maturing Revolving Facility Loan and that Lender will not be required to make a payment under Clause 40.1 (Payments to the Agent) in respect of its participation in the New Revolving Facility Loans; and

 

 

(B)

if the amount of the Maturing Revolving Facility Loan is equal to or less than the aggregate amount of the New Revolving Facility Loans:

 

 

I.

the relevant Borrower will not be required to make a payment under Clause 40.1 (Payments to the Agent); and

 

 

II.

each Lender will be required to make a payment under Clause 40.1 (Payments to the Agent) in respect of its participation in the New Revolving Facility Loans only to the extent that its participation in the New Revolving Facility Loans exceeds that Lender's participation in the Maturing Revolving Facility Loan and the remainder of that Lender's participation in the New Revolving Facility Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation in the Maturing Revolving Facility Loan.

 

 

 

 

(c)

At any time when a Lender becomes a Defaulting Lender, the maturity date of each of the participations of that Lender in the Revolving Facility Loans then outstanding will be automatically extended to the Termination Date in relation to the relevant Revolving Facility and will be treated as separate Revolving Facility Loans (the Separate Loans).

 

 

(d)

A Borrower to whom a Separate Loan is outstanding may prepay that Loan by giving three Business Days' prior notice to the Agent. The Agent will forward a copy of a prepayment notice received in accordance with this paragraph (d) to the Defaulting Lender concerned as soon as practicable on receipt.

 

 

(e)

Interest in respect of a Separate Loan will accrue for successive Interest Periods selected by the Borrower by the time and date specified by the Agent (acting reasonably) and will be payable by that Borrower to the Agent (for the account of that Defaulting Lender) on the last day of each Interest Period of that Loan.

 

 

(f)

The terms of this Agreement relating to Revolving Facility Loans generally shall continue to apply to Separate Loans other than to the extent inconsistent with paragraphs (c) to (e) above, in which case those paragraphs shall prevail in respect of any Separate Loan.

 

 

6.3

Effect of cancellation and prepayment on scheduled repayments

 

 

(a)

If the Company cancels the whole or any part of the Term Commitments in accordance with Clause 7.5 (Right of cancellation and repayment in relation to a single Lender) or if the Available Commitment of any Lender is cancelled under Clause 7.1 (Illegality) then (other than, in any relevant case, to the extent that any part of the relevant Term Commitment(s) so cancelled is subsequently increased pursuant to Clause 2.3 (Default Increase)) the amount of the Repayment Instalment for each Term Facility Repayment Date falling after that cancellation will reduce pro rata by the amount cancelled.

 

 

(b)

If the Company cancels the whole or any part of the Term Commitments in accordance with Clause 7.2 (Voluntary cancellation) or if the whole or part of any Term Commitment is cancelled pursuant to Clause 5.6 (Cancellation of Commitment) then, the amount of the Repayment Instalment for each Term Facility Repayment Date falling after that cancellation will reduce in inverse chronological order by the amount cancelled.

 

 

(c)

If any Term Loan is repaid or prepaid in accordance with Clause 7.5 (Right of cancellation and repayment in relation to a single Lender) or Clause 7.1 (Illegality) then, other than to the extent that any part of the relevant Commitment is subsequently increased pursuant to Clause 2.3 (Default Increase), the amount of the Repayment Instalment for each Term Facility Repayment Date falling after that repayment or prepayment will reduce pro rataby the amount of the Term Loan repaid or prepaid.

 

 

(d)

If any Term Loan is prepaid in accordance with Clause 7.3 (Voluntary prepayment of Term Loans), or Clause 8.2 (Disposal, Insurance Proceeds and Excess Cashflow) then the amount of the Repayment Instalment for each Term Facility Repayment Date falling after that prepayment will reduce in inverse chronological order by the amount of the Term Loan prepaid.

 

 

 

 

7.

ILLEGALITY, VOLUNTARY PREPAYMENT AND CANCELLATION

 

 

7.1

Illegality

 

If it becomes unlawful in any applicable jurisdiction for a Lender to perform any of its obligations as contemplated by this Agreement or to fund, issue or maintain its participation in any Utilisation or it becomes unlawful for any Affiliate of a Lender for that Lender to do so:

 

 

(a)

that Lender shall promptly notify the Agent upon becoming aware of that event;

 

 

(b)

upon the Agent notifying the Company, each Available Commitment of that Lender will be immediately cancelled; and

 

 

(c)

to the extent that the Lender's participation has not been transferred pursuant to Clause 46.5 (Replacement of Lender), each Borrower shall repay that Lender's participation in the Utilisations made to that Borrower on the last day of the Interest Period for each Utilisation occurring after the Agent has notified the Company or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender's corresponding Commitment(s) shall be cancelled in the amount of the participations repaid.

 

 

7.2

Voluntary cancellation

 

 

(a)

The Company may, if it gives the Agent not less than ten Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of US$5,000,000) of an Available Facility. Any cancellation under this Clause 7.2 shall reduce the Commitments of the Lenders rateably under that Facility.

 

 

(b)

Any notice of cancellation of the Available Commitments with respect to the Revolving Facility delivered at any time while Loans under any other Facility remain outstanding and/or other Commitments remain uncancelled must be accompanied by evidence, in form and substance satisfactory to the Majority Lenders, that the Group will have sufficient working capital facilities available to it following such cancellation.

 

 

7.3

Voluntary prepayment of Term Loans

 

 

(a)

A Borrower to which a Term Loan has been made may, if it or the Company gives the Agent not less than ten Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of that Term Loan (but, if in part, being an amount that reduces the amount of that Term Loan by a minimum amount of US$5,000,000).

 

 

(b)

A Term Loan may only be prepaid after the last day of the Availability Period for the Term Facility (or, if earlier, the day on which the applicable Available Facility is zero).

 

 

(c)

Any voluntary prepayment of a Term Loan shall be in prepayment of the Term Loans.

 

 

7.4

Voluntary prepayment of Revolving Facility Loans

 

A Borrower to which a Revolving Facility Loan has been made may, if it or the Company gives the Agent not less than ten Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of a Revolving Facility Loan (but if in part, being an amount that reduces the amount of the Revolving Facility Loan by a minimum amount of US$1,000,000).

 

 

 

 

7.5

Right of cancellation and repayment in relation to a single Lender

 

 

(a)

If:

 

 

(i)

any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 14.2 (Tax gross-up); or

 

 

(ii)

any Lender claims indemnification from the Company or an Obligor under Clause 14.3 (Tax indemnity) or Clause 15.1 (Increased costs),

 

the Company may, whilst the circumstance giving rise to the requirement for that increase or indemnification, give the Agent notice of cancellation of the Commitment(s) of that Lender and its intention to procure the repayment of that Lender's participation in the Utilisations.

 

 

(b)

On receipt of a notice referred to in paragraph (a) above in relation to a Lender, the Commitment(s) of the relevant Lender shall immediately be reduced to zero.

 

 

(c)

On the last day of each Interest Period which ends after the Company has given notice under paragraph (a) above in relation to a Lender (or, if earlier, the date specified by the Company in that notice), each Borrower to which a Utilisation is outstanding shall repay the relevant Lender's participation in that Utilisation together with all interest and other amounts accrued under the Finance Documents.

 

    (d) (i)

If any Lender becomes a Defaulting Lender, the Company may, at any time whilst the Lender continues to be a Defaulting Lender, give the Agent three Business Days' notice of cancellation of each Available Commitment of that Lender;

 

 

(ii)

On the notice referred to in paragraph (i) above becoming effective, each Available Commitment of the Defaulting Lender shall immediately be reduced to zero.

 

 

(iii)

The Agent shall as soon as practicable after receipt of a notice referred to in paragraph (i) above, notify all the Lenders.

 

 

8.

MANDATORY PREPAYMENT AND CANCELLATION

 

 

8.1

Exit

 

 

(a)

For the purpose of this Clause 8.1:

 

Capital Raising means:

 

 

(i)

any Flotation; and

 

 

(ii)

any other raising of capital (howsoever described) by any member of the Group whether by way of debt or equity, but excluding for this purpose any raising of capital which constitutes Permitted Financial Indebtedness or a Permitted Share Issue.

 

Flotation means:

 

 

(i)

a successful application being made for the admission of any part of the share capital of any member of the Group (or Holding Company of any member of the Group) to the Official List maintained by the FCA or any other internationally recognised stock exchange or investment exchange and the admission of any part of the share capital of any member of the Group (or Holding Company of any member of the Group) to trading on the London Stock Exchange plc or any other internationally recognised stock exchange or investment exchange; or

 

 

 

 

(ii)

the grant of permission to deal in any part of the issued share capital of any member of the Group (or Holding Company of any member of the Group) on any recognised investment exchange (as that term is used in the Financial Services and Markets Act 2000) or in or on any exchange or market replacing the same or any other exchange or market in any country.

 

FCA means the Financial Conduct Authority acting in accordance with Part 6 of the Financial Services and Markets Act 2000.

 

Upon the occurrence of:

 

 

(i)

a Change of Control; or

 

 

(ii)

the sale of all or substantially all of the assets of the Group whether in a single transaction or a series of related transactions,

 

the Facilities will be cancelled and all outstanding Utilisations, together with accrued interest, and all other amounts accrued under the Finance Documents, shall become immediately due and payable.

 

 

(A)

If any Capital Raising by any member of the Group other than Startek occurs, the outstanding Utilisations, together with accrued interest, shall within five Business Days of receipt of the proceeds of that Capital Raising by a member of the Group or Holding Company thereof be prepaid to an amount which would result in the Adjusted Leverage (as defined in Clause 22.1 (Financial definitions)) being no higher than 1.50:1 if the Adjusted Leverage were to be tested immediately after that prepayment by reference to: (I) the amount of Total Net Debt specified in the Compliance Certificate most recently delivered under this Agreement, after deducting the amount prepaid: and (II) the amount of EBITDA specified in the same Compliance Certificate.

 

 

(B)

For the avoidance of doubt, the proceeds of any Capital Raising by Startek may only be applied as expressly permitted by the terms of this Agreement.

 

 

8.2

Disposal, Insurance Proceeds and Excess Cashflow

 

 

(a)

For the purposes of this Clause 8.2, Clause 8.4 (Application of mandatory prepayments and cancellations) and Clause 8.5 (Mandatory Prepayment Accounts and Holding Accounts):

 

Disposal means a sale, lease, licence, transfer, loan or other disposal by a person of any asset, undertaking or business (whether by a voluntary or involuntary single transaction or series of transactions).

 

Disposal Proceeds means the consideration receivable by any member of the Group (including any amount receivable in repayment of intercompany debt) for any Disposal made by any member of the Group except for Excluded Disposal Proceeds and after deducting:

 

 

(i)

any reasonable expenses which are incurred by any member of the Group with respect to that Disposal to persons who are not members of the Group; and

 

 

(ii)

any Tax incurred and required to be paid by the seller in connection with that Disposal (as reasonably determined by the seller, on the basis of existing rates and taking account of any available credit, deduction or allowance).

 

Excluded Disposal Proceeds means:

 

 

 

 

(i)

any proceeds from a Permitted Disposal (other than under paragraphs (d) and (j) of the definition of Permitted Disposal); or

 

 

(ii)

any proceeds from a Permitted Disposal not falling within paragraph (i) above to the extent that those proceeds are required to be applied within 12 Months of the date of such Permitted Disposal (and are so applied within six Months of the date of receipt of proceeds from such Permitted Disposal) in or towards replacement or reinvestment in assets of members of the Group in a manner and to an extent which is not prohibited by this Agreement.

 

Excluded Insurance Proceeds means any proceeds of an insurance claim which the Company notifies the Agent are, or are to be, applied:

 

 

(i)

to meet a third party claim; or

 

 

(ii)

in the replacement, reinstatement and/or repair of the assets or otherwise in amelioration of the loss in respect of which the relevant insurance claim was made,

 

in each case as soon as possible (but in any event within 12 months of such insurance claim or, if earlier six Months of the receipt of such proceeds), or such longer period as the Majority Lenders may agree after receipt.

 

Insurance Proceeds means the proceeds of any insurance claim under any insurance maintained by any member of the Group except for Excluded Insurance Proceeds and after deducting any reasonable expenses in relation to that claim which are incurred by any member of the Group to persons who are not members of the Group.

 

 

(b)

The Company shall ensure that the Borrowers prepay Utilisations, and cancel Available Commitments, in amounts equal to the following amounts at the times and in the order of application contemplated by Clause 8.4 (Application of mandatory prepayments and cancellations):

 

 

(i)

the amount of any Disposal Proceeds, to the extent that the aggregate amount of those Disposal Proceeds received during any Financial Year exceeds US$1,000,000 (or its equivalent in any other currency);

 

 

(ii)

the amount of any Insurance Proceeds, to the extent that the aggregate amount of those Insurance Proceeds received during any Financial Year exceeds US$1,000,000 (or its equivalent in any other currency); and

 

 

(iii)

the amount equal to the percentage of Excess Cashflow specified in column 2 of the table below by reference to the applicable Net Leverage Ratio specified in column 1 of the table below, for any Financial Year ending on or after 31 December 2021,

 

 

Column 1

Net Leverage Ratio

Column 2

Percentage of Excess Cashflow

   

More than or equal to 3.00:1

50%

   

Less than 3.00:1 but greater than or equal to 2.50:1

25%

   

Less than 2.50:1

0%

 

 

 

provided always that, if the amount of Excess Cashflow calculated in the manner described in this paragraph (b)(iii) would (if applied towards such mandatory prepayment) cause the Total Cash and Cash Equivalent Investments held by the Group (as reflected in the financial statements for the relevant Financial Year based upon which the above calculations were made) to be less than the Minimum Balance, then the actual amount required to be applied towards mandatory prepayment under this paragraph (b)(iii) for the applicable Financial Year shall be reduced to such smaller amount (if any) as would not cause the Total Cash and Cash Equivalent Investments held by the Group (if applied towards such mandatory prepayment) to be less than the Minimum Balance as at the date in respect of which Excess Cashflow was calculated to be applied in mandatory prepayment of the Facilities for the applicable Financial Year. For the avoidance of doubt, Total Cash and Cash Equivalent Investments (including the cash on the balance sheet of the Group as at the first Utilisation Date) are balance sheet items and will not be included in the calculation of Excess Cashflow.

 

For the avoidance of doubt, no disposal of any shares in the Target shall be permitted without the consent of all of the Lenders. If the Lenders consent to a disposal of shares in the Target during the life of the Facilities, the Company shall ensure that the Borrowers prepay Utilisations and cancel Available Commitments in an amount equal to all of the proceeds of such disposal in the order of application contemplated by Clause 8.4 (Application of mandatory prepayments and cancellations).

 

 

8.3

[***]

 

 

 

8.4

Application of mandatory prepayments and cancellations

 

 

(a)

A prepayment of Utilisations or cancellation of Available Commitments made under Clause 8.2 (Disposal, Insurance Proceeds and Excess Cashflow) shall be applied in the following order:

 

 

(i)

first, pro rata:

 

 

(A)

in prepayment of Term Loans as contemplated in paragraphs (b) to (e) inclusive below; and

 

 

(B)

if required (and only to the extent required) pursuant to Clause 26.3 (Excess Hedging), in payment of termination or closing out amounts due to a Hedge Counterparty under a Hedging Document as a result of such prepayment of Term Loans;

 

 

(ii)

secondly, in cancellation of Available Commitments under the Revolving Facility (and the Available Commitments of the Lenders under the Revolving Facility will be cancelled rateably); and

 

 

(iii)

thirdly, in prepayment of Revolving Facility Loans on a pro rata basis and cancellation of the corresponding Revolving Facility Commitments.

 

 

 

 

(b)

Unless the Company makes an election under paragraph (d) below, the Borrowers shall prepay Loans at the following times:

 

 

(i)

in the case of any prepayment relating to the amounts of Disposal Proceeds or Insurance Proceeds, promptly upon receipt of those proceeds; and

 

 

(ii)

in the case of any prepayment relating to an amount of Excess Cashflow, within 30 days of delivery pursuant to Clause 21.1 (Financial statements) of the annual consolidated accounts of Startek for the relevant Financial Year, with the first such payment to be made in respect of the Financial Year ended 31 December 2021.

 

 

(c)

A prepayment under Clause 8.2 (Disposal, Insurance Proceeds and Excess Cashflow) shall be applied to the Term Loans pro rata and shall reduce the relevant Repayment Instalment for each Repayment Date falling after the date of prepayment in the manner contemplated by paragraph (d) of Clause 6.3 (Effect of cancellation and prepayment on scheduled repayments).

 

 

(d)

Subject to paragraph (e) below, the Company may elect that any prepayment under Clause 8.2 (Disposal, Insurance Proceeds and Excess Cashflow) be applied in prepayment of a Loan on the last day of the Interest Period relating to that Loan. If the Company makes that election then a proportion of the Loan equal to the amount of the relevant prepayment will be due and payable on the last day of its Interest Period.

 

 

(e)

If the Company has made an election under paragraph (d) above but a Default has occurred and is continuing, that election shall no longer apply and a proportion of the Loan in respect of which the election was made equal to the amount of the relevant prepayment shall be immediately due and payable (unless the Majority Lenders otherwise agree in writing).

 

 

8.5

Mandatory Prepayment Accounts and Holding Accounts

 

 

(a)

The Company shall ensure that:

 

 

(i)

Disposal Proceeds and Insurance Proceeds in respect of which the Company has made an election under paragraph (d) of Clause 8.4 (Application of mandatory prepayments and cancellations) are paid into a Mandatory Prepayment Account as soon as reasonably practicable after receipt by a member of the Group;

 

 

(ii)

any amounts of Excluded Disposal Proceeds and/or Excluded Insurance Proceeds to be applied in replacement, reinstatement, or repair of, or reinvestment in, assets are paid into a Holding Account as soon as reasonably practicable after receipt by a member of the Group; and

 

 

(iii)

an amount equal to any Excess Cashflow in respect of which the Company has made an election under paragraph (d) of Clause 8.4 (Application of mandatory prepayments and cancellations) is paid into a Mandatory Prepayment Account promptly after such election.

 

 

(b)

The Company and each Borrower irrevocably authorise the Agent to apply:

 

 

(i)

amounts credited to the Mandatory Prepayment Account; and

 

 

(ii)

amounts credited to the Holding Account which have not been applied in replacement, reinstatement or repair of, or reinvestment in, assets within six Months of receipt of the relevant proceeds (or such longer time period as the Majority Lenders may agree),

 

 

 

to pay amounts due and payable under Clause 8.4 (Application of mandatory prepayments and cancellations) and otherwise under the Finance Documents. The Company and each Borrower further irrevocably authorise the Agent (acting on the instructions of the Majority Lenders) to so apply amounts credited to the Holding Account whether or not six months have elapsed since receipt of those proceeds if a Default has occurred and is continuing. The Company and each Borrower also irrevocably authorise the Agent (acting on the instructions of the Majority Lenders) to transfer any amounts credited to the Holding Account referred to in this paragraph (b) to the Mandatory Prepayment Account pending payment of amounts due and payable under the Finance Documents (but if all such amounts have been paid any such amounts remaining credited to the Mandatory Prepayment Account may (unless a Default has occurred) be transferred back to the Holding Account).

 

 

(c)

A Lender, Security Agent or Agent with which a Mandatory Prepayment Account or Holding Account is held acknowledges and agrees that: (i) interest shall accrue at normal commercial rates on amounts credited to those accounts and that the account holder shall be entitled to receive such interest (which shall be paid in accordance with the mandate relating to such account) unless a Default is continuing; and (ii) each such account is subject to the Transaction Security.

 

 

8.6

Excluded proceeds

 

Where Excluded Disposal Proceeds and Excluded Insurance Proceeds include amounts which are intended to be used for a specific purpose within a specified period (as set out in the relevant definition of Excluded Disposal Proceeds or Excluded Insurance Proceeds), the Company shall ensure that those amounts are used for that purpose and shall promptly deliver a certificate to the Agent at the time of such application and at the end of such period confirming the amount (if any) which has been so applied within the requisite time periods provided for in the relevant definition.

 

 

9.

RESTRICTIONS

 

 

9.1

Notices of cancellation or prepayment

 

Any notice of cancellation, prepayment, authorisation or other election given by any Party under Clause 7 (Illegality, Voluntary Prepayment and Cancellation), paragraph (d) of Clause 8.4 (Application of mandatory prepayments and cancellations) or Clause 8.5 (Mandatory Prepayment Accounts and Holding Accounts) shall (subject to the terms of those Clauses) be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

 

 

9.2

Interest and other amounts

 

Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.

 

 

9.3

No reborrowing of Term Facility

 

No Borrower may reborrow any part of the Term Facility which is prepaid.

 

 

9.4

Reborrowing of Revolving Facility

 

Unless a contrary indication appears in this Agreement, any part of the Revolving Facility which is prepaid or repaid may be reborrowed in accordance with the terms of this Agreement.

 

 

 

 

9.5

Prepayment in accordance with Agreement

 

No Borrower shall repay or prepay all or any part of the Utilisations or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.

 

 

9.6

No reinstatement of Commitments

 

Subject to Clause 2.3 (Default Increase), no amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

 

 

9.7

Agent's receipt of notices

 

If the Agent receives a notice under Clause 7 (Illegality, Voluntary Prepayment and Cancellation) or an election under paragraph (d) of Clause 8.4 (Application of mandatory prepayments and cancellations), it shall promptly forward a copy of that notice or election to either the Company or the affected Lender, as appropriate.

 

 

9.8

Prepayment elections

 

The Agent shall notify the Lenders as soon as possible of any proposed prepayment of any Term Loan under Clause 7.3 (Voluntary prepayment of Term Loans) or Clause 8.2 (Disposal, Insurance Proceeds and Excess Cashflow).

 

 

9.9

Effect of repayment and prepayment on Commitments

 

If all or part of any Lender's participation in a Utilisation under a Facility is repaid or prepaid and is not available for redrawing (other than by operation of Clause 4.2 (Further conditions precedent) or Clause 5 (Utilisation)), an amount of that Lender's Commitment (equal to the amount of the amount of the participation which is repaid or prepaid) in respect of that Facility will be deemed to be cancelled on the date of repayment or prepayment.

 

 

9.10

Application of prepayments

 

Any prepayment of a Utilisation (other than a prepayment pursuant to Clause 7.1 (Illegality) or Clause 7.5 (Right of cancellation and repayment in relation to a single Lender)) shall be applied pro rata to each Lender's participation in that Utilisation.

 

 

10.

INTEREST

 

 

10.1

Calculation of interest

 

The rate of interest on each Loan for each Interest Period is the percentage rate per annum which is the aggregate of the applicable:

 

 

(a)

Margin; and

 

 

(b)

LIBOR.

 

10.2

Payment of interest

 

 

(a)

The Borrower to which a Loan has been made shall pay accrued interest on that Loan on the last day of each Interest Period (and, if the Interest Period is longer than six Months, on the dates falling at six Monthly intervals after the first day of the Interest Period).

 

 

 

 

(b)

If the Compliance Certificate received by the Agent which relates to the relevant Annual Financial Statements shows that a higher Margin should have applied during a certain period, then the Company shall (or shall ensure the relevant Borrower shall) promptly pay to the Agent any amounts necessary to put the Lenders in the position they would have been in had the appropriate rate of the Margin applied during such period.

 

 

10.3

Default interest

 

 

(a)

If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is 2% per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting on the instructions of the Majority Lenders). Any interest accruing under this Clause 10.3 shall be immediately payable by the Obligor on demand by the Agent.

 

 

(b)

If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:

 

 

(i)

the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and

 

 

(ii)

the rate of interest applying to the overdue amount during that first Interest Period shall be 2% per annum higher than the rate which would have applied if the overdue amount had not become due.

 

 

(c)

Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.

 

 

10.4

Notification of rates of interest

 

The Agent shall promptly notify the Lenders and the Company of the determination of a rate of interest under this Agreement.

 

 

11.

INTEREST PERIODS

 

 

11.1

Selection of Interest Periods and Terms

 

 

(a)

A Borrower (or the Company on behalf of a Borrower) may select an Interest Period for a Loan in the Utilisation Request for that Loan or (if the Loan is a Term Loan and has already been borrowed) in a Selection Notice.

 

 

(b)

Each Selection Notice for a Term Loan is irrevocable and must be delivered to the Agent by the Borrower (or the Company on behalf of the Borrower) to which that Term Loan was made not later than the Specified Time.

 

 

(c)

If the Borrower (or the Company on behalf of the Borrower) fails to deliver a Selection Notice to the Agent in accordance with paragraph (b) above, the relevant Interest Period will, subject to Clause 11.2 (Changes to Interest Periods), be three Months.

 

 

(d)

Subject to the other provisions of this Clause 11, the Company may select an Interest Period of three or six Months or any other period agreed between the Company and the Agent (acting on the instructions of all the Lenders in relation to the relevant Loan).

 

 

 

 

(e)

An Interest Period for a Loan shall not extend beyond the Termination Date.

 

 

(f)

Each Interest Period for a Term Loan shall start on its Utilisation Date or (if already made) on the last day of its preceding Interest Period.

 

 

(g)

A Revolving Facility Loan has one Interest Period only.

 

 

(h)

Prior to the Syndication Date, Interest Periods shall be one Month or such other period as the Agent (acting on the instructions of the Majority Lenders) and the Company may agree and any Interest Period which would otherwise end during the Month preceding or extend beyond the Syndication Date shall end on the Syndication Date.

 

 

11.2

Changes to Interest Periods

 

 

(a)

Prior to determining the interest rate for a Term Loan, the Agent (acting on the instructions of the Majority Lenders) may shorten an Interest Period for any Term Loan to ensure there are sufficient Term Loans (with an aggregate amount equal to or greater than the relevant Repayment Instalment) which have an Interest Period ending on a Term Facility Repayment Date for the Borrowers to make the relevant Repayment Instalment due on that date.

 

 

(b)

If the Agent makes any of the changes to an Interest Period referred to in this Clause 11.2, it shall promptly notify the Company and the Lenders.

 

 

11.3

Non-Business Days

 

If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).

 

 

11.4

Consolidation and division of Term Loans

 

 

(a)

Subject to paragraph (b) below, if two or more Interest Periods:

 

 

(i)

relate to Term Loans and are made to the same Borrower; and

 

 

(ii)

end on the same date,

 

those Term Loans will, unless the Company or the Borrower specifies to the contrary in the Selection Notice for the next Interest Period, be consolidated into, and treated as, a single Term Loan on the last day of the Interest Period.

 

 

(b)

Subject to Clause 4.3 (Maximum number of Utilisations), and Clause 5.3 (Currency and amount) if a Borrower (or the Company on its behalf) requests in a Selection Notice that a Term Loan be divided into two or more Term Loans, that Term Loan will, on the last day of its Interest Period, be so divided with amounts specified in that Selection Notice, having an aggregate amount equal to the amount of the Term Loan immediately before its division.

 

 

12.

CHANGES TO THE CALCULATION OF INTEREST

 

 

12.1

Absence of quotations

 

Subject to Clause 12.2 (Market disruption):

 

 

(a)

if LIBOR is to be determined by reference to the Base Reference Banks but a Base Reference Bank does not supply a quotation by the Specified Time on the Quotation Day, the applicable LIBOR shall be determined on the basis of the quotations of the remaining Base Reference Banks; or

 

 

 

 

(b)

if Clause 12.3 (Alternative Reference Bank Rate) applies but an Alternative Reference Bank does not supply a quotation before close of business in Hong Kong on the date falling one Business Day after the Quotation Day for that Loan, the applicable Alternative Reference Bank Rate shall be determined on the basis of the quotations of the remaining Alternative Reference Banks.

 

 

12.2

Market disruption

 

 

(a)

If a Market Disruption Event occurs in relation to a Loan for any Interest Period, then the rate of interest on each Lender's share of that Loan for the Interest Period shall be the percentage rate per annum which is the sum of:

 

 

(i)

the Margin; and

 

 

(ii)

the Alternative Reference Bank Rate or (if an Alternative Market Disruption Event has occurred with respect to that Loan for the relevant Interest Period of that Loan) the rate notified to the Agent by that Lender as soon as practicable and in any event by close of business on the date falling three Business Days after the Quotation Day (or, if earlier, on the date falling three Business Days prior to the date on which interest is due to be paid in respect of that Interest Period), to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in that Loan from whatever source it may reasonably select.

 

 

(b)

If:

 

 

(i)

the percentage rate per annum notified by a Lender pursuant to paragraph (a)(ii) above is less than the Alternative Reference Bank Rate; or

 

 

(ii)

a Lender has not notified the Agent of a percentage rate per annum pursuant to paragraph (a)(ii) above,

 

the cost to that Lender of funding its participation in that Loan for that Interest Period shall be deemed, for the purposes of paragraph (a) above, to be the Alternative Reference Bank Rate.

 

 

(c)

If a Market Disruption Event or an Alternative Market Disruption Event occurs the Agent shall, as soon as is practicable, notify the Company.

 

 

(d)

In this Agreement:

 

Alternative Market Disruption Event means:

 

 

(i)

before close of business in Singapore on the date falling one Business Day after the Quotation Day for the relevant Interest Period of the Loan, none or only one of the Alternative Reference Banks supplies a rate to the Agent to determine the Alternative Reference Bank Rate for the relevant Interest Period of the Loan; or

 

 

(ii)

before close of business in Singapore on the date falling three Business Days after the Quotation Day for the relevant Interest Period of the Loan, the Agent receives notifications from a Lender or Lenders (whose participations in that Loan exceed 35% of that Loan) that the cost to it of funding its participation in that Loan from whatever source it may reasonably select would be in excess of the Alternative Reference Bank Rate; and

 

 

 

Market Disruption Event means:

 

 

(i)

at or about noon on the Quotation Day for the relevant Interest Period LIBOR is to be determined by reference to the Base Reference Banks and none or only one of the Base Reference Banks supplies a rate to the Agent to determine LIBOR for the relevant currency and Interest Period; or

 

 

(ii)

before close of business in Singapore on the Quotation Day for the relevant Interest Period, the Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed 35% of that Loan) that the cost to it of funding its participation in that Loan from whatever source it may reasonably select would be in excess of LIBOR.

 

 

12.3

Alternative Reference Bank Rate