ISIN NO 001 0705601 BOND AGREEMENT between AINMT Scandinavia Holdings AS (Issuer) AINMT Holdings AB (Parent) and Norsk Tillitsmann ASA (Bond Trustee) on behalf of the Bondholders in the bond issue 9.75 per cent AINMT Scandinavia Holdings AS Senior Secured Callable Bond Issue 2014/2019
TABLE OF CONTENTS 1 INTERPRETATION 3 2 THE BONDS 13 3 LISTING 14 4 REGISTRATION IN THE SECURITIES DEPOSITORY 14 5 PURCHASE AND TRANSFER OF BONDS 14 6 CONDITIONS PRECEDENT 14 7 REPRESENTATIONS AND WARRANTIES 17 8 STATUS OF THE BONDS AND SECURITY 19 9 INTEREST 19 10 MATURITY OF THE BONDS AND REDEMPTION 20 11 PAYMENTS 22 12 ISSUER S ACQUISITION OF BONDS 24 13 COVENANTS 24 14 FEES AND EXPENSES 30 15 EVENTS OF DEFAULT 31 16 BONDHOLDERS MEETING 34 17 THE BOND TRUSTEE 36 18 MISCELLANEOUS 39
This agreement has been entered into on 19 March 2014 between (1) AINMT Scandinavia Holdings AS (a company existing under the laws of Norway with registration number 913 192 354 as issuer (the Issuer ), (2) AINMT Holdings AB (a company existing under the laws of Sweden with registration number 556771-3440 as parent (the Parent ), and (3) Norsk Tillitsmann ASA (a company existing under the laws of Norway with registration number 963 342 624) as bond trustee (the Bond Trustee ). 1 Interpretation 1.1 Definitions In this Bond Agreement, the following terms shall have the following meanings: Account Manager means a Bondholder s account manager in the Securities Depository. Accounts means the Escrow Account, the Issuer s Debt Service Account and the Issuer s Operating Expense Account opened and maintained with DNB Bank ASA, Norwegian office. Accounts Pledge means a first priority pledge over the Issuer s Debt Service Account and the Issuer s Operating Expense Account. Assignment of Insurances means a first priority assignment or pledge over the Issuer Group's insurances (as applicable). Attachment means the attachments to this Bond Agreement. Bond Agreement means this bond agreement, including any Attachments to it, each as amended from time to time. Bond Issue means the bond issue constituted by the Bonds. Bondholder means a holder of Bond(s), as registered in the Securities Depository, from time to time. Bondholders' Meeting means a meeting o f Bondholders, as set out in Clause 16. Bonds means the debt instruments issued by the Issuer pursuant to this Bond Agreement. Book Equity means the aggregate book value (on a consolidated basis) of the Issuer s equity treated as equity in accordance with IFRS at the time of issue provided however with no SAC Balance item & amortisation. 3
Norsk TillUsmann ASA Book Value of Assets means Total Assets less Goodwill, (ii) 50% of the Total Assets of ICE Norge AS and (iii) the Parent Loan. Business Day means any day on which commercial banks are open for general business in Oslo and Stockholm, and can settle foreign currency transactions and the Norwegian Central Bank s Settlement System is open. Business Day Convention means that no adjustment will be made, notwithstanding the period end date occurs on a day that is not a Business Day, and if such date is not a Business Day, payments of interest will be made on the first following day that is a Business Day (No Adjustments o f Business Day). Call Option shall have the meaning set out in Clause 10.2. Change of Control Event means if and when any person or a group (as such term is defined in section 1-5 of Norwegian Limited Liability Companies Act) other than an entity under common control with the Ultimate Parent becomes the owner of more than 50.0% of the outstanding shares and/or voting rights of the Parent. Closing Memo shall have the meaning set out in Clause 6.2(c). Cure A m ount -shalibavethemeanmg-sefeutimglause 13^6.2. Danish Assets Pledge means a first priority general floating charge (in Danish: virksomhedspant) over certain assets of Ice Danmark ApS securing the Bond Issue and the Internal Loans from the Issuer to Ice Denmark ApS for the total amount of DKK 37.5 million. Danish Licenses means two licenses to operate in the 450 MHz frequency band of which a) the first license was assigned by the Danish Ministry o f Science, Technology and Higher Education to Nordisk Mobiltelefon Denmark A/S (CVR. No. 2984 9943, subsequently renamed Ice Denmark ApS) in January 2007, and b) the second licence was acquired from Nordisk Mobiltelefon International AB in January 2014. Danish Licenses Pledge means a first priority pledge over the Danish Licenses for the total amount of DKK 37.5 million in favour of the Bond Trustee (on behalf of the Bondholders) on first priority as security for the Issuer s obligations under the Finance Documents and the Issuer as security for obligations of Ice Denmark APS under the Internal Loan from the Issuer to Ice Denmark ApS. Decisive Influence means a person having, as a result of an agreement or through the ownership o f shares or interests in another person: (a) (b) a majority of the voting rights in that other person; or a right to elect or remove a majority of the members of the board of directors o f that other person. When determining the relevant person s number of voting rights in the other person or the right to elect and remove members of the board of directors, rights held by the
Norsk Tiliitsmann ASA parent company of the relevant person and the parent company s Subsidiaries shall be included. Defeasance Pledge shall have the meaning given to it in Clause 18.2. Dividend Payment shall have the meaning given to it in Clause 13.4(b). DKK means Danish kroner, being the lawful currency o f Denmark. EBITDA means earnings before financial items, taxes, depreciation and amortizations on a rolling 12 months basis. EBITDA pre SAC means EBITDA excluding SAC items in accordance with IFRS at the time of issue measured on a consolidated basis for the Issuer Group post transaction and such additional debt. Ericsson Facility means the facilities granted under the USD 56 million term facilities agreement dated 25 October 2010 between Ericsson Credit AB as lender and the Parent, ICE Norge AS and Netett Sverige AB as obligors (as later amended and restated). Escrow Account means an account denominated in SEK in the name of the Issuer, blocked and pledged in favour of the Bond Trustee (on behalf of the Bondholders) on first priority as security for the Issuer s obligations under the Finance Documents. Escrow Account Pledge means the pledge over the Escrow Account, where the bank operating the account has waived any set-off rights. Event of Default means the occurrence of an event or circumstance specified in Clause 15.1. Exchange means a securities exchange or other reputable regulated market, or (ii) Oslo Alternative Bond Market, on which the Bonds are listed, or where the Issuer has applied for listing of the Bonds. Face Value means the denomination of each of the Bonds, as set out in Clause 2.2. Factoring Pledge means a first priority pledge over the Norwegian Guarantors existing and future receivables. Finance Documents means this Bond Agreement, (ii) the agreement between the Bond Trustee and the Issuer referred to in Clause 14.2, (iii) the Security Documents (including any notice, acknowledgement and other ancillary documentation relating thereto), (iv) any document executed in relation to the granting o f any Security to the Bond Trustee under the Finance Documents, and (v) any other document (whether creating a Security or not) which is executed at any time by the Issuer or any other person in relation to any amount payable under this Bond Agreement and designated as a Finance Document. Financial Indebtedness means any indebtedness for or in respect of: (a) moneys borrowed;
(b) (c) (d) (e) (f) (g) (h) any amount raised by acceptance under any acceptance credit facility or dematerialized equivalent; any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with GAAP, be treated as finance or capital lease; receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis); any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect o f a borrowing; any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value o f any derivative transaction, only the mark to market value shall be taken into account); and the amount of any liability in respect o f any guarantee or indemnity for any of the items referred to in paragraphs (a) to (g) above. Financial Statements means the audited unconsolidated and consolidated annual financial statements of the Issuer for any financial year, drawn up according to IFRS, such accounts to include a profit and loss account, balance sheet, cash flow statement and report from the Board of Directors and (ii) the audited annual financial statements of the Guarantors for any financial year, drawn up according to GAAP, such accounts to include a profit and loss account, balance sheet, cash flow statement and report from the Board o f Directors. GAAP means the generally accepted accounting practice and principles in the country in which the relevant company is incorporated. Goodwill means the book value (on a consolidated basis) of the items owned by or belonging to the Issuer Group treated as goodwill in accordance with GAAP. Group means the Parent and its Subsidiaries from time to time, and a Group Company means the Parent or any o f its Subsidiaries. G uarantee means an unconditional and irrevocable guarantee ( selvskyldnergar anti ) from each of the Guarantors securing the Issuer s obligations under this Bond Agreement and any other Finance Document, including interest, costs and expenses. G uarantors means the following companies, each being 100% (however 90.32% in the case of Ice Danmark ApS) directly owned by the Issuer: Ice Communication Norge AS (previously Telco Data AS), a Norwegian company with reg. number 912 672 808; 6
(ii) Netett Sverige AB, a Swedish company with reg. number 556773-3091; (iii) Ice Norge AS, a Norwegian company with reg. number 991 715 290; (iv) (v) Ice Danmark ApS, a Danish company with reg. number 29 84 99 43; and any other Subsidiaries o f the Issuer (present and future). Guarantor Share Pledges means a first priority share pledge granted by the Issuer over all of the shares (100%) issued by each of Ice Communication Norge AS and Netett Sverige AB, and 90.32% of the shares issued by Ice Denmark ApS. IFRS means the International Financial Reporting Standards and guidelines and interpretations issued by the International Accounting Standards Board (or any predecessor and successor thereof), in force from time to time. Interest Expenses means, on a consolidated basis for the Issuer Group, the aggregate consolidated gross interest costs of the Issuer Group (excluding interest accumulating on Shareholder Loans) on a rolling 12 months basis. For the avoidance of doubt, gains or losses on currency transactions and unrealized gains or losses from interest rate swaps shall not be considered as income or costs. Interest Payment Date means 19 March and 19 September each year and the Maturity Date. Any adjustment will be made according to the Business Day Convention. Interim Accounts means the unaudited unconsolidated and consolidated quarterly financial statements of the Issuer for any quarter ending on a Quarter Date, drawn up according to IFRS and (ii) the unaudited quarterly financial statements of the Guarantors for any quarter ending on a Quarter Date, drawn up according to GAAP. Internal Loan Agreement means a loan agreement between the Issuer and a Guarantor, (ii) the Issuer and the Parent in respect of the Parent Loan or (iii) between two Guarantors setting out the conditions for the Internal Loans, to be in form and substance acceptable to the Bond Trustee (on behalf o f the Bondholders). Internal Loans means: (ii) (iii) the loans from the Issuer to the Guarantors (as applicable) made in connection with the purpose as described in Clause 2.3 and (ii); any other loan (if applicable) between companies in the Issuer Group; and the Parent Loan. Internal Loans Assignment means a first priority assignment of the Internal Loans. Intra-group Service Agreements means: The agreement between Ice Communication Norge AS as service provider and Ice Norge AS dated 18 March 2014; 7
(ii) (iii) The agreement between Ice Norge AS as service provider and Ice Communication Norge AS dated 18 March 2014; and The agreement between AINMT Holdings AB, Ice Norge AS, Ice Communication Norge AS, Netett Sverige AB and Ice Danmark ApS on central costs dated 21 December 2009. Inventory Pledge means a first priority pledge over the Norwegian Guarantors inventory. ISIN means International Securities Identification Number - the identification number of the Bond Issue. Issue Date means 19 March 2014. Issuer s Bonds means any Bonds owned by the Issuer, any person or persons who has Decisive Influence over the Issuer, or any person or persons over whom the Issuer has Decisive Influence. Issuer s Debt Service Account means an account to be used for interest payments under the Bond Issue in the name of the Issuer, blocked and pledged in favour of the Bond Trustee (on behalf of the Bondholders) on first priority as security for the Issuer s obligations under the Finance Documents. Issuer s Operating Expense Account means accounts denominated in NOK, SEK, DKK and USD in the name of the Issuer, pledged in favour of the Bond Trustee (on behalf of the Bondholders) on first priority as security for the Issuer s obligations under the Finance Documents. Issuer Group means the Issuer and all its Subsidiaries from time to time, and an Issuer Group Company means the Issuer or any o f its Subsidiaries. Issuer Share Pledge means a first priority share pledge granted by the Parent over all of the shares (100%) issued by the Issuer. Licenses means the Norwegian Licenses, the Swedish Licenses, the Danish Licenses and the New Licenses. Liquidity means, at any given time, the aggregate book value of the freely available and unencumbered cash and bank deposits of the Issuer (on a consolidated basis) with banks having a minimum credit rating o f A which are not blocked and all being freely available to the Issuer at any time and without any contractual obligations restricting any Group Company from paying dividends or make other distributions to the Issuer, to service any financial indebtedness of the Issuer or make any loan to the Issuer (as the case may be), if such contractual obligations imply that the funds are not freely available to the Issuer, including the funds on the Accounts following disbursement o f funds from the Escrow Account. Machinery and Plant Pledge means a first priority pledge over the Norwegian Guarantors machinery and plant. 8
Norsk Tillitsroann ASA Manager means the managers for the Bond Issue, being DNB Markets (part of DNB Bank ASA), Pareto Securities AS and Swedbank Norge, branch of Swedbank AB (publ.). Mandatory Redemption Event means, except if it constitutes a Total Loss Event: (ii) (iii) any of the Licenses are sold or disposed of; the Parent ceases to be the owner (directly or indirectly) of 100% o f the shares in the Issuer; or the Issuer ceases to be the owner (directly or indirectly) of the ownership stakes in each o f the Guarantors required under Clause 13.4(a). Material Adverse Effect means a material adverse effect on: (a) the business, financial condition or operations of any of the Obligors, (b) any Obligor s ability to perform and comply with its obligations under any of the Finance Documents; or (c) the validity or enforceability o f any o f the Finance Documents. Maturity Date means 19 March 2019. Any adjustment will be made according to the Business Day Convention. Net Interest Bearing Debt means, on a consolidated basis for the Issuer Group, the aggregate consolidated interest bearing debt (excluding any Internal Loan) less Liquidity. New Licenses means the licenses to operate in the 800 MHz, 900 MHz and 1,800 MHz frequency bands assigned by the Norwegian Post and Telecommunications Authority to Ice Communication Norge AS (reg. number 912 672 808) in December 2013. NOK means Norwegian kroner, being the lawful currency o f Norway. Norwegian Licenses means the licenses to operate in the 410 MHz and 450 MHz frequency bands assigned by the Norwegian Post and Telecommunications Authority to Nordisk Mobiltelefon Norge AS (reg. number 988 440 620) in December 2004 and later assigned to Nordisk Mobiltelefon Norge AS (reg. number 991 715 290, subsequently renamed Ice Norge AS) in April 2009. Norwegian Guarantors means Ice Communication Norge AS and Ice Norge AS. Obligor means the Issuer and its present and future Subsidiaries including the Guarantors. Outstanding Bonds means the Bonds not redeemed or otherwise discharged. Operating Assets Pledge means a first priority pledge over the Norwegian Guarantors operating assets. Parent Loan means the loan of equivalent in SEK of approximately USD 9.955 million from the Issuer to the Parent to repay the Pareto Bank Facility. 9
Pareto Bank Facility means the loan facilities dated 23 December 2013 with the Parent as the borrower and Pareto Bank AS as the lender. Party means a party to this Bond Agreement (including its successors and permitted transferees). Paying Agent means the legal entity appointed by the Issuer to acts as its paying agent in the Securities Registry with respect to the Bonds. Payment Date means a date for payment o f principal or interest under this Bond Agreement. Pre-Disbursement Security means: (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) (xi) (xii) (xiii) (xiv) the Issuer Share Pledge; the Shareholder Loans Assignment; the Guarantor Share Pledges; the Internal Loans Assignment; the Accounts Pledge; the Guarantees; the Assignment o f Insurances; the Operating Assets Pledge; the Inventory Pledge; the Machinery and Plant Pledge; the Factoring Pledge; the Swedish Assets Pledge; the Danish Licenses Pledge; and the Danish Assets Pledge. Pre-Settlement Security means the Escrow Account Pledge. Project Documents means the following documents: (ii) (iii) (iv) (v) the Licenses; the Intra-group Service Agreements; any Shareholder Loans agreements; the Internal Loan Agreement; and the SCASA. Quarter Date means each 31 March, 30 June, 30 September and 31 December. 10
SAC means Subscriber Acquisition Costs which are costs incurred attributable to obtaining and/or retaining service contracts with subscribers; Marketing & PR, device revenue and cost of goods sold, commissions, start-up costs and reseller discounts and subsidies. SAC Balance means any SAC item that has met the criteria for being balanced as an intangible asset in accordance with IAS 38. SCASA means the secured creditors asset sales agreement between ABN Amro Bank N.V., the Parent and Ice Norge AS dated 19 February 2009. Securities Depository means the securities depository in which the Bond Issue is registered, being Verdipapirsentralen ASA (VPS) in Norway. Security Agent means the Bond Trustee in its capacity as security agent and/or security trustee pursuant to Clause 17.4. Security means any encumbrance, 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 and Covenant Defeasance shall have the meaning given to it in Clause 18.2. Security Documents means, collectively, all the documents evidencing, creating or granting the Security Interests. Security Interests means the Pre-Settlement Security and the Pre-Disbursement Security. SEK means Swedish kroner, being the lawful currency o f Sweden. Side Letter means the letter from the Issuer and Netett Sverige AB to the Bond Trustee where Netett Sverige AB undertakes not to make any recommendations to the relevant District Court (Sw. tingsrätt) with respect to the appointment of the administrator (Sw. rekonstruktör) in any business reorganisation of Netett Sverige AB (including the identity of any administrator), without the prior written consent of the Bond Trustee. Shareholder Loans means any loans granted by the Parent to the Issuer. Shareholder Loans Assignment means a first priority assignment of the rights of the Parent as lender under any Shareholder Loans. Stamdata means the web site www.stamdata.no, maintained by the Bond Trustee. Subsidiary means a company over which another company has Decisive Influence. Swedish Assets Pledge means first priority mortgage (in Swedish: företagshypotek) over movable assets o f Netett Sverige AB (including the Swedish 11
Norsk Tillitsmanii ASA Licenses) securing the Bond Issue and the Internal Loans to Netett AB for the total amount of SEK 500 million. Swedish Licenses means the license to operate in the 450 MHz frequency band assigned by the Swedish Post and Telecom Authority to Nordisk Mobiltelefon AS (org. no. 988 440 620) in December 2005 and later assigned to Nordisk Mobiltelefon Sverige AB (reg. number 556684-6340,) in August 2007 and assigned to Netett Sverige AB in March 2009. Total Assets means the aggregate book value (on a consolidated basis) of the Issuer s total assets made in accordance with IFRS. Total Assets of Ice Norge means the book value of ICE Norge AS total assets made in accordance with GAAP. Total Loss Event means if all or a substantial part of the Licenses are revoked or cancelled. Trustee Expenses means the costs, fees and expenses incurred by the Bond Trustee in relation to the Bond Issue. Ultimate Parent means AI Media Holdings (NMT) LLC, a Delaware company with reg. number 4645801. USD means United States dollar, being the lawful currency of the United States. US Securities Act means the U.S. Securities Act o f 1933, as amended. Voting Bonds means the Outstanding Bonds less the Issuer s Bonds. 1.2 Construction In this Bond Agreement, unless the context otherwise requires: (a) (b) (c) (d) (e) (f) headings are for ease o f reference only; words denoting the singular number shall include the plural and vice versa; references to Clauses are references to the Clauses o f this Bond Agreement; references to a time is a reference to Oslo time unless otherwise stated herein; references to a provision of law is a reference to that provision as it may be amended or re-enacted, and to any regulations made by the appropriate authority pursuant to such law, including any determinations, rulings, judgments and other binding decisions relating to such provision or regulation; an Event of Default is continuing if it has not been remedied or waived; and 12
(g) references to a person shall include any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality). 2 The Bonds 2.1 Binding nature o f this Bond Agreement 2.1.1 By virtue of being registered as a Bondholder (directly or indirectly) with the Securities Depository, the Bondholders are bound by the terms of this Bond Agreement and any other Finance Document, without any further action required to be taken or formalities to be complied with, see also Clause 18.1. 2.1.2 This Bond Agreement is available to anyone and may be obtained from the Bond Trustee or the Issuer. The Issuer shall ensure that this Bond Agreement is available to the general public throughout the entire term o f the Bonds. This Bond Agreement may be published on Stamdata or such other venues as decided by the Bond Trustee. 2.2 The Bonds The Issuer has resolved to issue a series of Bonds in the maximum amount of SEK 1,500,000,000 (Swedish kroner fifteen hundred million). The Face Value is SEK 500,000. The Bonds shall rank pari passu between themselves. The Bond Issue will be described as 9.75 per cent AINMT Scandinavia Holdings AS Senior Secured Callable Bond Issue 2014/2019. The ISIN o f the Bond Issue will be NO 001 0705601. The tenor of the Bonds is from and including the Issue Date to the Maturity Date. 2.3 Purpose and utilization The Issuer shall apply the net proceeds of the Bonds (net of fees, legal costs and any other agreed costs and expenses) as follows: (ii) (iii) (iv) the equivalent in SEK of approximately USD 47.1 million to Ice Norge AS and Netett Sverige AB accumulated to repay the amounts outstanding under the Ericsson Facility; the equivalent in SEK of approximately USD 9.955 million to the Parent to repay the Pareto Bank Facility in full; fund the Issuer Debt Service Account as set out in Clause 6.7; and any remaining amount to be applied for capital expenditure and for general corporate purposes of the Issuer Group, where upon first disbursement an amount corresponding to SEK 200 million shall be distributed to Netett AB while DKK 25 million shall be distributed to Ice Denmark ApS. 13
3 Listing 3.1 The Issuer shall apply for listing o f the Bonds on Oslo Bors. 3.2 If the Bonds are listed, the Issuer shall ensure that the Bonds remain listed until they have been discharged in full. 4 Registration in the Securities Depository 4.1 The Bond Issue and the Bonds shall prior to disbursement be registered in the Securities Depository according to the Norwegian Securities Depository Act (Act 2002/64) and the terms and conditions o f the Securities Depository. 4.2 The Issuer shall ensure that correct registration in the Securities Depository is made and shall notify the Securities Depository of any changes in the terms and conditions o f this Bond Agreement. The Bond Trustee shall receive a copy of the notification. The registration may be executed by the Paying Agent. 4.3 The Bonds have not been registered under the US Securities Act, and the Issuer is under no obligation to arrange for registration of the Bonds under the US Securities Act. 5 Purchase and transfer of Bonds 5.1 Bondholders may be subject to purchase or transfer restrictions with regard to the Bonds, as applicable from time to time under local laws to which a Bondholder may be subject (due e.g. to its nationality, its residency, its registered address, its place(s) for doing business). Each Bondholder must ensure compliance with applicable local laws and regulations at its own cost and expense. 5.2 Notwithstanding the above, a Bondholder which has purchased the Bonds in breach o f applicable mandatory restrictions may nevertheless utilize its rights (including, but not limited to, voting rights) under this Bond Agreement. 6 Conditions Precedent 6.1 Pre-Settlement Conditions Precedent Disbursement of the net proceeds of the Bonds to the Escrow Account will be subject to the Bond Trustee having received the documents listed below, in form and substance satisfactory to it: (a) (b) (c) this Bond Agreement, duly executed by all parties thereto; certified copies of all necessary corporate resolutions of the Issuer and the Parent to issue the Bonds and execute the Finance Documents; a power o f attorney from the Parent and the Issuer to relevant individuals for their execution of the relevant Finance Documents, or extracts from the relevant register or similar documentation evidencing such indivi 14
authorisation to execute the Finance Documents on behalf of the Parent and the Issuer; (d) (e) (f) (g) (h) certified copies of the certificate of incorporation or other similar official document for the Parent and the Obligors, evidencing that they are validly registered and existing and (ii) the articles of association of the Parent and the Obligors; confirmation from the Issuer that the representations and warranties set out in Clause 7.1 remain true and accurate, and that no Event of Default has occurred and is continuing; documentation evidencing that USD 115 million has been injected as equity into Ice Communication Norge AS by the Ultimate Parent by way of contribution in kind, (ii) that the loan granted from the Ultimate Parent to Ice Communication Norge AS has been reduced to USD 25 million and (iii) the transfer of the shares in Ice Communication Norge AS from the Ultimate Parent to the Parent and from the Parent to the Issuer; evidence that the Intra-group Service Agreements have been entered into, including evidence that Ice Communication Norge AS has been made party to the intra-group agreement on central costs dated 21 December 2009; the latest Financial Statements from each of the Guarantors and an opening balance o f the Issuer; confirmation from the Manager that the requirements set out in Chapter 7 of the Norwegian Securities Trading Act (implementing the EU prospectus directive (2003/71 EC) concerning prospectuses have been fulfilled; 0) to the extent necessary, any public authorisations required for the Bond Issue; (k) (l) (m) (n) (o) confirmation from the Paying Agent that the Bonds have been registered in the Securities Depository; the Bond Trustee fee agreement set out in Clause 14.2, duly executed; copies of any written documentation used in the marketing of the Bonds or made public by the Issuer or the Manager in connection with the Bond Issue; Swedish legal opinion including capacity corporate opinions for the Parent; and establishment of the Escrow Account Pledge, duly executed by all parties (including all applicable notices, acknowledgements and consents from the relevant account bank, and including waiver o f any set-off rights). 6.2 Pre-Disbursement Conditions Precedent 15
Norsk Tillitsmaim ASA Disbursement of the net proceeds of the Bonds from the Escrow Account to the Issuer will be subject to the Bond Trustee having received the documents listed below, in form and substance satisfactory to it: (a) (b) (c) (d) (e) (*) (g) 00 (j) 00 (1) (m ) a duly executed release notice from the Issuer in the form set out in Attachment 2 to this Bond Agreement; documentation evidencing that the amount to be released will be applied in accordance with Clause 2.3; certified copies of all necessary corporate resolutions of the Parent and the Obligors (if not delivered under Clause 6.1) to execute the Finance Documents; a power of attorney from the Parent and the Obligors (unless delivered under Clause 6.1) to relevant individuals for their execution of the relevant Finance Documents, or extracts from the relevant register or similar documentation evidencing such individuals authorisation to execute the Finance Documents on behalf o f the Parent and the Obligors; evidence that the debt set out in Clause 2.3 and (ii) has been or will be prepaid in connection with the release of funds from the Escrow Account and that all Security and/or guarantees thereunder (save for the pledge over the shares in Ice Norge AS granted under the SCASA) have been or will be released and discharged in accordance with a closing memorandum to be agreed between the existing lenders, the Issuer and the Bond Trustee (the Closing Memo ); confirmation from the Issuer that the representations and warranties set out in Clause 7.1 remain true and accurate, and that no Event of Default has occurred and is continuing; any other Finance Documents (unless delivered as part of the Pre-Settlement Conditions Precedent and to the extent applicable) in acceptable form and being duly executed; documentation evidencing that the Issuer's Debt Service Account and the Issuer's Operating Expense Accounts have been opened with DNB Bank ASA (Norwegian office); all relevant Security Documents (except for the Escrow Account Pledge) being executed and perfected (or satisfactory evidence that the Security Documents will be executed and perfected in connection with (and latest simultaneously with) the release of the funds from the Escrow Account) in accordance with the Closing Memo; the Side Letter duly executed; the Internal Loan Agreements duly executed by the parties thereto; legal opinions in form and substance satisfactory to the Bond Trustee; evidence to the Bond Trustee that all Licences are owned directly Guarantors; by th 16
(n) (o) copy of all Licenses; and evidence that the Group holds adequate insurance with respect to its assets, equipment and business. 6.3 The Bond Trustee may, in its reasonable opinion, waive the deadline or requirements for documentation as set out in Clauses 6.1 and 6.2. 6.4 Disbursement of the net proceeds from the Bonds is subject to the Bond Trustee s written notice to the Issuer, the Manager and the Paying Agent that the documents have been controlled and that the required conditions precedent are fulfilled. 6.5 The Bond Trustee is authorised to pay any fees and costs (including legal costs) due and owing related to the Bond Issue as evidenced through invoice from the Manager using the proceeds in the Escrow Account, to the extent such fees and costs have not been deducted from the proceeds transferred to the Escrow Account. 6.6 On the Issue Date, subject to receipt of confirmation from the Bond Trustee pursuant to Clause 6.4, the Manager shall transfer the net proceeds from the Bond Issue to the Escrow Account. 6.7 The Issuer shall transfer an amount equivalent to two (2) years of interest on the Bonds by transfer of funds from the Escrow Account to the Debt Service Account. 6.8 The Issuer shall transfer the amount referred to in Clause 2.3(iv) to the Issuer's Operating Expense Account. The Issuer shall ensure that amounts credited to an Issuer's Operating Expense Account are only used in accordance with Clause 2.3 (iv). 6.9 In the event that the Pre-Disbursement Conditions Precedent in Clause 6.2 for any reason are not satisfied within 90 days after the Issue Date, the Issuer shall use the funds in the Escrow Account towards prepayment of all Bonds at (a) par value together with accrued interest thereon if the failure to comply with the Pre Disbursement Conditions Precedent was beyond the control of the Issuer and (b) otherwise at the applicable rate set out under Clause 10.4. 7 Representations and W arranties 7.1 The Issuer represents and warrants to the Bond Trustee that: (a) Status It is a limited liability company, duly incorporated and validly existing and registered under the laws of its jurisdiction of incorporation, and has the power to own its assets and carry on its business as it is being conducted. (b) Power and authority It has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, this Bond Agreement and any other Finance Document to which it is a party and the transactions contemplated by those Finance Documents. 17
(c) Valid, binding and enforceable obligations This Bond Agreement and each other Finance Document to which it is a party constitutes (or will constitute, when executed by the respective parties thereto) its legal, valid and binding obligations, enforceable in accordance with their respective terms, and (save as provided for therein) no further registration, filing, payment of tax or fees or other formalities are necessary or desirable to render the said documents enforceable against it. (d) Non-conflict with other obligations The entry into and performance by it of this Bond Agreement and any other Finance Document to which it is a party and the transactions contemplated thereby do not and will not conflict with any law or regulation or judicial or official order; (ii) its constitutional documents; or (iii) any agreement or instrument which is binding upon it or any of its assets. (e) (ii) No Event o f Default No Event o f Default exists or is likely to result from the making o f any drawdown under this Bond Agreement or the entry into, the performance of, or any transaction contemplated by, any Finance Document. No other event or circumstance is outstanding which constitutes (or with the expiry of a grace period, the giving of notice, the making of any determination or any combination of any of the foregoing, would constitute) a default or termination event (howsoever described) under any other agreement or instrument which is binding on it or any of its Subsidiaries or to which its (or any of its Subsidiaries ) assets are subject which has or is likely to have a Material Adverse Effect. (f) Authorizations and consents All authorisations, consents, approvals, resolutions, licenses, exemptions, filings, notarizations or registrations required: (ii) to enable it to enter into, exercise its rights and comply with its obligations under this Bond Agreement or any other Finance Document to which it is a party; and to carry on its business as presently conducted and as contemplated by this Bond Agreement, have been obtained or effected and are in full force and effect. (g) Litigation No litigation, arbitration or administrative proceedings or investigations of or before any court, arbitral body or agency which, if adversely determined, is likely to have a. Material Adverse Effect have (to the best of its knowledge and belief) been started nr threatened against it or any o f its Subsidiaries. 18
Norsk TilUtsmann ASA (h) Financial Statements Its most recent Financial Statements and Interim Accounts fairly and accurately represent the assets and liabilities and financial condition as at their respective dates, and have been prepared in accordance with GAAP, consistently applied. No Material Adverse Effect Since the date of the Financial Statements, there has been no change in its business, assets or financial condition that is likely to have a Material Adverse Effect. (j) No misleading information Any factual information provided by it to the subscribers or the Bond Trustee for the purposes o f this Bond Issue was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated. (k) No withholdings The Issuer is not required to make any deduction or withholding from any payment which it may become obliged to make to the Bond Trustee or the Bondholders under this Bond Agreement. (l) Pari passu ranking Its payment obligations under this Bond Agreement or any other Finance Document to which it is a party rank at least pari passu as set out in Clause 8.1. (m) Security No Security exists over any of the present assets of any Group Company in conflict with this Bond Agreement. 7.2 The representations and warranties set out in Clause 7.1 are made on the execution date of this Bond Agreement, and shall be deemed to be repeated on the Issue Date and on each drawdown date from the Escrow Account. 8 Status of the Bonds and security 8.1 The Bonds shall constitute senior debt obligations of the Issuer. The Bonds shall rank at least pari passu with all other obligations of the Issuer (save for such claims which are preferred by bankruptcy, insolvency, liquidation or other similar laws of general application) and shall rank ahead o f subordinated debt. 8.2 The Bonds, including accrued but unpaid interest, costs and expenses, shall be secured by the Security Interest. 9 Interest 9.1 The Issuer shall pay interest on the par value of the Bonds from, and including, the Issue Date at a fixed rate of 9.75 per cent. (9.75%) per annum (the Fixed Rate ). 9.2 Interest payments shall be made semi-annually in arrears on the Interest Payment Dates each year, the first Interest Payment Date being 19 September 2014. 19
9.3 The relevant interest payable amount shall be calculated based on a period from, and including, one Interest Payment Date to, but excluding, the next following applicable Interest Payment Date. 9.4 The day count fraction ( Fixed Rate Day Count Fraction ) in respect of the calculation of the payable interest amount shall be 30/360, which means that the number of days in the calculation period in respect of which payment is being made divided by 360 (the number of days to be calculated on the basis of a year of 360 days with twelve 30-days months (unless the last day of the calculation period is the 31st day of a month but the first day o f the calculation period is a day other than the 30th or 31st day of a month, in which case the month that includes that last day shall not be considered to be shortened to a 30-day month, or (ii) the last day of the calculation period is the last day of the month of February, in which case the month of February shall not be considered to be lengthened to a 30-day month)). 9.5 The payable interest amount per Bond for a relevant calculation period shall be calculated as follows: Interest = Face X Fixed X Fixed Rate Amount Fraction Value Rate Day Count 10 M aturity of the Bonds and Redemption 10.1 Maturity The Bonds shall mature in full on the Maturity Date, and shall be repaid at par (100%) by the Issuer. 10.2 Call Option 10.2.1 The Issuer may redeem the Bond Issue in whole (all or nothing) as follows (Call Option): (a) at any time from Issue Date to, but not including, the Interest Payment Date in March 2017 at a price equivalent to the sum of: (ii) the present value on the relevant record date of 103.90% of par value as if such payment originally should have taken place on the Interest Payment Date in March 2017; and the present value on the relevant record date of the remaining coupon payments (less any accrued but unpaid interest) through and including the Interest Payment Date in March 2017, both calculated by using a discount rate of 50 basis points over the comparable Swedish government bond rate (i.e. comparable to the remaining duration of the Bonds until the Interest Payment Date in March 2017 (plus accrued interest on redeemed amount) and where releva record date shall mean a date agreed upon between the Trustee, the Pa Agent, VPS and the Issuer in connection with such repayment; 20
Norsk Tilli tsmami ASA (b) (c) at any time from and including the Interest Payment Date in March 2017 to, but not including, the Interest Payment Date in March 2018 at a price equal to 103.90% o f par value (plus accrued interest on the redeemed amount); at any time from and including the Interest Payment Date in March 2018 to, but not including, the Interest Payment Date in September 2018 at a price equal to 101.95% of par value (plus accrued interest on the redeemed amount); and (d) any time from and including the Interest Payment Date in September 2018 to, but not including, the Maturity Date at a price equal to 100.975% of par value (plus accrued interest on the redeemed amount). 10.2.2 Exercise of the Call Option shall be notified by the Issuer in writing to the Bond Trustee and the Bondholders at least thirty Business Days prior to the settlement date of the Call Option. 10.2.3 On the settlement date of the Call Option, the Issuer shall pay to each of the Bondholders holding Bonds to be redeemed, in respect of each such Bond, the principal amount of such Bond (including any premium as stated above) and any unpaid interest accrued up to the settlement date. 10.2.4 Bonds redeemed by the Issuer in accordance with this Clause 10.2 shall be discharged against the Outstanding Bonds. 10.3 Change o f control 10.3.1 Upon the occurrence of a Change o f Control Event, each Bondholder shall have the right to require that the Issuer redeems its Bonds (a Put Option ) at a price of 101% of par plus accrued interest 10.3.2 The Put Option must be exercised within 60 calendar days after the Issuer has given notification to the Bond Trustee of a Change of Control Event. Such notification shall be given as soon as possible after a Change o f Control Event has taken place. 10.3.3 The Put Option may be exercised by each Bondholder by giving written notice of the request to its Account Manager. The Account Manager shall notify the Paying Agent of the redemption request. The settlement date of the Put Option shall be the third Business Day after the end of the 60 calendar days exercise period of the Put Option. 10.3.4 On the settlement date of the Put Option, the Issuer shall pay to each of the Bondholders holding Bonds to be redeemed, the principal amount of each such Bond (including any premium pursuant to Clause 10.3.1) and any unpaid interest accrued up to (but not including) the settlement date. 10.4 Mandatory Redemption 10.4.1 Upon a Mandatory Redemption Event occurring, the Issuer shall no later than 30 calendar days following the relevant Mandatory Redemption Event (however immediately if constituting an outstanding Event of Default), redeem 100% of the outstanding Bonds at the price set out in Clause 10.2.1. The redemption price s
determined based on the date the Mandatory Redemption Event occurred and not based on the date of repayment. 10.4.2 If the Bonds are redeemed according to this Clause 10.4, the Issuer may use any amounts on the Accounts as partial payment. 10.4.3 On the settlement date of the Mandatory Prepayment Event, the Issuer shall pay to each of the Bondholders holding Bonds to be redeemed, the principal amount of each such Bond and any unpaid interest accrued up to (but not including) the settlement date. 10.4.4 Upon the occurrence of several Mandatory Redemption Events, the Issuer is only obliged to pay one redemption amount. 10.5 Total Loss Redemption Upon a Total Loss Event, the Issuer shall promptly, but in any event no later than 90 calendar days following the Total Loss Event, redeem 100% of the outstanding Bonds at 100% of par value (plus accrued interest on the redeemed amount). 11 Payments 11.1 Covenant to pay 11.1.1 The Issuer will on any Payment Date (or any other due date pursuant to any Finance Document) unconditionally pay to or to the order of the Bond Trustee all amounts due under this Bond Agreement or any other Finance Document. 11.1.2 The covenant contained in Clause 11.1.1 shall be for the benefit of the Bond Trustee and the Bondholders. 11.2 Payment mechanics 11.2.1 If no specific order is made by the Bond Trustee under Clause 11.1.1, the Issuer shall pay all amounts due to the Bondholders under this Bond Agreement or any other Finance Document by crediting the bank account nominated by each Bondholder in connection with its securities account in the Securities Depository. 11.2.2 Payment shall be deemed to have been made once the amount has been credited to the bank which holds the bank account nominated by the Bondholder in question, but if the paying bank and the receiving bank are the same, payment shall be deemed to have been made once the amount has been credited to the bank account nominated by the Bondholder in question, see however Clause 11.3. 11.2.3 In case o f irregular payments, the Bond Trustee may instruct the Issuer or Bondholders of other payment mechanisms than described in Clause 11.2.1 or 11.2.2 above. The Bond Trustee may also obtain payment information regarding Bondholders accounts from the Securities Depository or Account Managers. 11.2.4 Subject to Clause 11.3, payment by the Issuer in accordance with this Clause 11.2 shall constitute good discharge o f its obligations under Clause 11.1.1. 22
11.3 Currency 11.3.1 If the Bonds are denominated in other currencies than NOK, each Bondholder has to provide the Paying Agent (either directly or through its Account Manager) with specific payment instructions, including foreign exchange bank account details. Depending on any currency exchange settlement agreements between each Bondholder s bank and the Paying Agent, cash settlement may be delayed, and payment shall be deemed to have been made at the date of the cash settlement, provided however, that no default interest or other penalty shall accrue for the account of the Issuer. 11.3.2 Except as otherwise expressly provided, all amounts payable under this Bond Agreement and any other Finance Document shall be payable in the same currency as the Bonds are denominated in. If, however, the Bondholder has not given instruction as set out in Clause 11.3.1 within five Business Days prior to a Payment Date, the cash settlement will be exchanged into NOK and credited to the NOK bank account registered with the Bondholder s account in the Securities Depository. 11.3.3 Amounts payable in respect of costs, expenses, taxes and other liabilities of a similar nature shall be payable in the currency in which they are incurred. 11.4 Set-off and counterclaims The Issuer may not apply or perform any counterclaims or set-off against any payment obligations pursuant to this Bond Agreement or any other Finance Document. 11.5 Interest in the event o f late payment 11.5.1 In the event that any amount due under this Bond Agreement or any Finance Document is not made on the relevant due date, the unpaid amount shall bear interest from the due date at an interest rate equivalent to the interest rate according to Clause 9 plus five per cent. (5.00%) per annum. 11.5.2 The interest charged under this Clause 11.5 shall be added to the defaulted amount on each respective Interest Payment Date relating thereto until the defaulted amount has been repaid in full 11.5.3 The unpaid amounts shall bear interest as stated above until payment is made, whether or not the Bonds are declared to be in default pursuant to Clause 15.1(a), cf. Clauses 15.2-15.4. 11.6 Partial payments If the Bond Trustee or the Paying Agent receives a payment that is insufficient to discharge all the amounts then due and payable under the Finance Documents, that payment shall be applied in the following order: (a) first, in or towards payment o f any unpaid fees, costs and expenses o f the Bond Trustee under the Finance Documents; 23
(b) (c) secondly, in or towards payment of any accrued interest due but unpaid under the Bond Agreement, pro rata and without any preference or priority of any kind; and thirdly, in or towards payment of any principal due but unpaid under the Bond Agreement, pro rata and without any preference or priority of any kind. 12 Issuer s acquisition of Bonds The Issuer has the right to acquire and own Bonds (Issuer s Bonds). The Issuer s holding of Bonds may at the Issuer s discretion be retained by the Issuer, sold or discharged. 13 Covenants 13.1 General The Issuer undertakes from the date of this Bond Agreement and until such time that no amounts are outstanding under this Bond Agreement or any other Finance Document, to the Bond Trustee, as further set out in this Clause 13. 13.2 Information Covenants 13.2.1 The Issuer shall: (a) (b) (c) (d) (e) without being requested to do so, promptly inform the Bond Trustee in writing of any Event of Default, any event or circumstance which the Issuer understands or ought to understand may lead to an Event of Default and any other event which may have a Material Adverse Effect; without being requested to do so, inform the Bond Trustee in writing if the Issuer agrees to sell or dispose of all or a substantial part of its assets or operations, or change the nature o f its business; without being requested to do so, prepare Financial Statements and make them available on its website in the English language as soon as they become available, and not later than 120 days after the end of the financial year; without being requested to do so, prepare Interim Accounts and make them available on its website in the English language as soon as they become available, and not later than 60 days after the end o f the relevant quarter; at the request o f the Bond Trustee, report the balance of the Issuer s Bonds; (0 without being requested to do so, send the Bond Trustee copies of any statutory notifications of the Issuer, including but not limited to in connection with mergers, de-mergers and reduction of the Issuer s share capital or equity; 24