EXECUTION VERSION
Exhibit
(b)(3)
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EXECUTION
VERSION
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$15,000,000,000
FACILITY
AGREEMENT
dated
1 May 2007 (as amended on 31 May 2007)
for
ASTRAZENECA
PLC
as
Borrower
arranged
by
CITIGROUP
GLOBAL MARKETS LIMITED
DEUTSCHE
BANK AG, LONDON BRANCH
HSBC
BANK PLC
and
JPMORGAN
CAZENOVE LIMITED
with
HSBC
BANK PLC
acting
as Facility Agent
and
HSBC
BANK USA, NATIONAL ASSOCIATION
acting
as Swingline Agent
_____________________________________________
$15,000,000,000
FACILITY AGREEMENT
INCORPORATING
A US$ SWINGLINE FACILITY
_____________________________________________
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CONTENTS
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Clause
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Page
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Definitions
And Interpretation
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1
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2.
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The
Facility
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13
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3.
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Purpose
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13
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4.
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Conditions
Of Utilisation
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13
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5.
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Utilisation
- Revolving Facility Loans
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16
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6.
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Swingline
Facility
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17
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7.
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Utilisation
- Swingline Loans
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17
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8.
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Swingline
Loans
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19
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9.
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Repayment
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20
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10.
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Prepayment
And Cancellation
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20
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11.
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Interest
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24
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12.
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Interest
Periods
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25
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13.
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Changes
To The Calculation Of Interest
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25
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14.
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Fees
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26
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15.
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Tax
Gross Up And Indemnities
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28
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16.
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Increased
Costs
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33
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17.
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Other
Indemnities
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34
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18.
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Mitigation
By The Lenders
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36
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19.
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Costs
And Expenses
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36
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20.
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Representations
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37
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21.
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Information
Undertakings
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39
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22.
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General
Undertakings
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42
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23.
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Events
Of Xxxxxxx
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00
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00.
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Changes
To The Lenders
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47
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25.
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Changes
To The Borrower
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51
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26.
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Role
Of The Agents And The Arranger
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52
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27.
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Conduct
Of Business By The Finance Parties
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57
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28.
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Sharing
Among The Finance Parties
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58
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29.
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Payment
Mechanics
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60
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30.
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Set-Off
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63
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31.
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Notices
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63
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32.
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Calculations
And Certificates
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65
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33.
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Partial
Invalidity
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65
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34.
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Remedies
And Waivers
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65
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35.
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Amendments
And Waivers
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65
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36.
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Counterparts
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66
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37.
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Governing
Law
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67
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38.
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Enforcement
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67
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SCHEDULE
1
THE
LENDERS
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68
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Part
I The Original Lenders
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68
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Part
II The Swingline Lenders
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68
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SCHEDULE
2
CONDITIONS PRECEDENT TO
INITIAL UTILISATION
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69
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SCHEDULE
3
UTILISATION
REQUESTS
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71
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Part
I Utilisation Request - Revolving Facility
Loans
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71
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Part
II Utilisation Request - Swingline
Loans
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72
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SCHEDULE
4
MANDATORY COST
FORMULAE
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73
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SCHEDULE
5
FORM OF TRANSFER
CERTIFICATE
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75
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SCHEDULE
6
TIMETABLES
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77
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THIS
AGREEMENT is dated 1 May 2007 (as amended on 31 May 2007) and made
between:
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(1)
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ASTRAZENECA
PLC (the
"Borrower");
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(2)
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CITIGROUP
GLOBAL MARKETS LIMITED, DEUTSCHE BANK AG, LONDON
BRANCH and HSBC BANK PLC as mandated lead
arrangers and bookrunners and JPMORGAN CAZENOVE LIMITED
as mandated lead arranger (whether acting individually or
together the
"Arranger");
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(3)
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THE
FINANCIAL INSTITUTIONS listed in Schedule 1 (The Lenders) as lenders
(the "Original
Lenders");
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(4)
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HSBC
BANK PLC as agent of the other Finance Parties (the
"Facility Agent");
and
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(5)
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HSBC
BANK USA, NATIONAL ASSOCIATION as swingline
agent of the other Finance Parties (the "Swingline
Agent").
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IT
IS AGREED as follows:
SECTION
1
INTERPRETATION
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1.
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DEFINITIONS
AND INTERPRETATION
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1.1
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Definitions
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In
this
Agreement:
"Acquisition"
means the acquisition by the Borrower (or any of its Subsidiaries) of the shares
of the Target pursuant to the Merger Agreement.
"Additional
Cost Rate" has the meaning given to it in Schedule 4 (Mandatory Cost
formulae).
"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.
"Agents"
means the Swingline Agent and the Facility Agent, and "Agent"
means, as the context may require, either of them.
"Authorisation"
means an authorisation, consent, approval, resolution, licence, exemption,
filing, notarisation or registration.
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"Availability
Period" means the period from and including the
date of this Agreement to the date falling 7 Business Days prior to the
Termination Date.
"Available
Commitment" means a Lender's Commitment minus (subject as set out
below):
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(a)
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the
amount of its participation in any outstanding Loans;
and
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(b)
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in
relation to any proposed Utilisation, the amount of its participation
in
any Loans that are due to be made on or before the proposed
Utilisation
Date.
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For
the
purposes of calculating a Lender's Available Commitment in relation to any
proposed Utilisation, that Lender's participation in any Loans that are due
to
be repaid or prepaid on or before the proposed Utilisation Date shall not be
deducted from a Lender's Commitment.
"Available
Facility" means the aggregate for the time being of each Lender's
Available Commitment.
"Break
Costs" means the amount (if any) by which:
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(a)
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the
interest (exclusive of Margin and Mandatory Cost) 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;
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exceeds:
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(b)
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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.
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"Business
Day" means a day (other than a Saturday or Sunday) on which banks are
open for general business in London and New York.
"Capital
Markets Debt Instruments" means Financial Indebtedness by way of any
notes or bonds, whether or not convertible into share capital of any member
of
the Group issued or to be issued by the Borrower or by any wholly-owned members
of the Group (in each case other than to another member of the Group) and
guaranteed by the Borrower (but excluding any Commercial Paper) provided
that such amounts cannot be double counted for the purposes of this
definition and the definition of "Syndicated
Loans".
"Certain
Funds Period" means the period commencing on the date of this Agreement
and ending on the date falling 6 months after the date of this
Agreement.
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"Certain
Funds Utilisation" means a Loan made or to be made under the Facility
during the Certain Funds Period where such Loan is to be made solely for a
purpose described in paragraphs (a) and (b) of Clause 3.1 (Purpose).
"Commercial
Paper" means any commercial paper issued under any commercial paper
programme.
"Commitment"
means:
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(a)
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in
relation to an Original Lender, the amount set opposite its name
under the
heading "Commitment" in Part I of Schedule 1 (The Lenders) and the
amount
of any other Commitment transferred to it under this Agreement;
and
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(b)
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in
relation to any other Lender, the amount of any Commitment transferred
to
it under this Agreement,
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to
the
extent not cancelled, reduced or transferred by it under this
Agreement.
"Confidentiality
Undertaking" means a confidentiality undertaking substantially in a
recommended form of the LMA (LMA Form of Confidentiality Undertaking)
or in any other form agreed between the Borrower and the Facility
Agent.
"Consolidated
Net Tangible Assets" means the aggregate amount of consolidated total
assets of the Borrower, after deducting therefrom (a) all liabilities due within
one year (other than (x) short term borrowings and (y) long-term debt due within
one year) and (b) all goodwill, trade names, trademarks, patents and other
like
intangibles, as shown on the audited consolidated balance sheet contained in
the
last annual report to shareholders of the Borrower.
"Default"
means an Event of Default or any event or circumstance specified in
Clause 23 (Events of Default) which
would (with the expiry of a grace period or the giving of notice or any
combination of either of the foregoing) be an Event of Default.
"Disruption
Event" means either or both of:
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(a)
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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 Facility (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
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(b)
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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:
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(i)
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from
performing its payment obligations under the Finance Documents;
or
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(ii)
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from
communicating with other Parties in accordance with the terms of
the
Finance Documents,
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(and
which
(in either such case)) is not caused by, and is beyond the control of, the
Party
whose operations are disrupted.
"Event
of Default" means any event or circumstance specified as such in
Clause 23 (Events of
Default).
"Facility"
means the Revolving Facility or the Swingline Facility.
"Facility
Office" means the office or offices notified by a Lender to the
Facility Agent and the Swingline 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 as a Lender or, as the case may be, a Swingline
Lender.
"Federal
Funds Rate" means, in relation to any day, the rate per annum equal
to:
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(a)
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the
weighted average of the rates on overnight Federal funds transactions
with
members of the US Federal Reserve System arranged by Federal funds
brokers, as published for that day (or, if that day is not a New
York
Business Day, for the immediately preceding New York Business Day)
by the
Federal Reserve Bank of New York;
or
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(b)
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if
a
rate is not so published for any day which is a New York Business
Day, the
average of the quotations for that day on such transactions received
by
the Swingline Agent from three Federal funds brokers of recognised
standing selected by the Swingline
Agent.
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"Fee
Letter" means any letter or letters dated on or about the date of this
Agreement between the Arranger and the Borrower (or an Agent and the Borrower)
setting out any of the fees referred to in Clause 14
(Fees).
"Finance
Document" means this Agreement, any Fee Letter and any other document
designated as a "Finance Document" by the Facility Agent and the
Borrower.
"Finance
Party" means any Agent, the Arranger or a Lender.
"Financial
Indebtedness" means any indebtedness for or in respect of:
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(a)
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moneys
borrowed;
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(b)
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any
amount raised by acceptance under any acceptance credit facility
or
dematerialised equivalent;
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(c)
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any
amount raised pursuant to any note purchase facility or the issue
of
bonds, notes, debentures, loan stock or any similar
instrument;
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(d)
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the
amount of any liability in respect of any lease or hire purchase
contract
which would, in accordance with GAAP, be treated as a finance or
capital
lease;
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(e)
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receivables
sold or discounted (other than any receivables to the extent they
are sold
on a non-recourse basis or on a recourse basis if the right of recourse
is
limited to recourse for ineligible receivables
only);
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(f)
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any
amount raised under any other transaction with a bank or a financial
institution (including any forward sale or purchase agreement) required
to
be accounted for as borrowing;
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(g)
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any
derivative transaction entered into with a bank or a financial institution
in connection with protection against or benefit from fluctuation
in any
rate or price (and, when calculating the value of any derivative
transaction, only the marked to market value shall be taken into
account);
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(h)
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any
counter-indemnity obligation in respect of a guarantee, indemnity,
bond,
standby or documentary letter of credit or any other instrument issued
by
a bank or financial institution;
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(i)
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any
amount raised by the issue of redeemable shares (but only to the
extent
such shares are redeemable at the shareholder's option prior to the
Termination Date); and
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(j)
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(without
double counting) the amount of any liability in respect of any guarantee
or indemnity for any of the items referred to in paragraphs (a) to
(j)
above,
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but
excluding any indebtedness owed by one member of the Group to another member
of
the Group.
"GAAP"
means generally accepted accounting principles including IFRS.
"Group"
means the Borrower and its Subsidiaries for the time being.
"Holding
Company" means, in relation to a company or corporation, any other
company or corporation in respect of which it is a Subsidiary.
"IFRS"
means international accounting standards within the meaning of the IAS
Regulation 1606/2002 to the extent applicable to the relevant financial
statements.
"Information
Package" means the document in the form approved by the Borrower
concerning the Group which, at the Borrower's request and on its behalf, is
to
be prepared in relation to this transaction and distributed by the Arranger
prior to the Syndication Date in connection with syndication.
"Interest
Period" means, in relation to a Revolving Facility Loan, each period
determined in accordance with Clause 12
(Interest Periods) and, in relation to an
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5
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Unpaid
Sum, each period determined in accordance with Clause 11.3 (Default interest) and, in relation to a
Swingline Loan, includes each period determined under this Agreement by
reference to which interest on a Swingline Loan is calculated.
"ITA"
means the Income Tax Xxx 0000.
"Lender"
means:
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(a)
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any
Original Lender; and
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(b)
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any
bank which has become a Party in accordance with Clause 24 (Changes to the
Lenders),
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which
in
each case has not ceased to be a Party in accordance with the terms of this
Agreement.
"LIBOR"
means, in relation to any Loan:
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(a)
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the
applicable Screen Rate; or
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(b)
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(if
no Screen Rate is available for dollars for the Interest Period of
that
Loan) the arithmetic mean of the rates (rounded upwards to four decimal
places) as supplied to the Facility Agent at its request quoted by
the
Reference Banks to leading banks in the London interbank
market,
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as
of the
Specified Time on the Quotation Day for the offering of deposits in dollars
and
for a period comparable to the Interest Period for that Loan.
"LMA"
means the Loan Market Association.
"Loan"
means a Revolving Facility Loan or a Swingline Loan.
"Major
Default" means with respect to the Borrower only, any circumstances
constituting a Default under any of Clause 23.1 (Non-Payment); Clause 23.2 (Other
obligations) insofar as it
relates to a breach of Clauses 3.1
(Purpose), 22.3 (Negative pledge)
(including, for the purposes of this definition only, any Material Subsidiary)
or Clause 22.6 (Acquisition
Undertakings); Clause 23.3
(Misrepresentation) insofar as it relates to a breach of any Major
Representation; Clause 23.5
(Insolvency); Clause 23.6
(Insolvency proceedings); Clause 23.7
(Creditors' process); Clause 23.8
(Unlawfulness) or Clause 23.9
(Repudiation).
"Major
Representations" means a representation or warranty with respect to the
Borrower only under any of Clause 20.1
(Status), Clause 20.2 (Binding
Obligations), Clause 20.3
(Non-Conflict) in respect of (a) and (b) only and Clause 20.4 (Power and Authority) or Clause 20.11
(Pari Passu Ranking).
"Majority
Lenders" means:
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(a)
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if
there are no Loans then outstanding, a Lender or Lenders whose Commitments
aggregate more than 662/3% of the Total Commitments
(or, if
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6
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the
Total
Commitments have been reduced to zero, aggregated more than 662/3%
of the Total Commitments immediately prior to the reduction); or
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(b)
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at
any other time, a Lender or Lenders whose participations in the Loans
then
outstanding aggregate more than 662/3%
of
all the Loans then outstanding.
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"Mandatory
Cost" means the percentage rate per annum calculated by the Facility
Agent in accordance with Schedule 4 (Mandatory
Cost formulae).
"Margin"
means 0.075 per cent. per annum.
"Material
Adverse Effect" means an event or circumstance
reasonably likely to have a material adverse effect on the ability of the
Borrower to perform its payment obligations under the Finance
Documents.
"Material
Subsidiary" means, at any time, AstraZeneca AB or a Subsidiary of the
Borrower which has turnover representing 10 per cent. or more of consolidated
turnover of the Group calculated on a consolidated basis. Compliance with the
condition set out above shall be determined by reference to the latest financial
statements of that Subsidiary (consolidated in the case of a Subsidiary which
itself has Subsidiaries) and the latest consolidated financial statements of
the
Group. A report by the auditors of the Borrower that a Subsidiary is
or is not a Material Subsidiary shall, in the absence of manifest error, be
conclusive and binding on all Parties.
"Merger
Agreement" means the merger agreement dated 22 April 2007 between the
Borrower, AstraZeneca Biopharmaceuticals Inc. and the Target.
"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:
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(a)
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(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;
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(b)
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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
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(c)
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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.
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The
above
rules will only apply to the last Month of any period.
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7
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"Net
Proceeds" means the proceeds of (i) any Syndicated Loans or (ii) the
issue of any Capital Markets Debt Instruments or (iii) the issue of any
Commercial Paper, in each case net of:
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(a)
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fees,
costs and expenses properly incurred by any member of the Group to
third
parties;
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(b)
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any
Taxes payable; and
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(c)
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any
reasonable provision properly made for Taxes or for the purpose of
meeting
any third party liability,
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to
the
extent connected with the raising or incurrence of such Financial Indebtedness
or such issuance.
"New
York Business Day" means a day (other than a Saturday or Sunday) on
which banks are open for general business in New York City.
"Original
Financial Statements" means the audited consolidated financial
statements of the Group for the financial year ended 31 December
2006.
"Participating
Member State" means any member state of the European Communities that
adopts or has adopted the euro as its lawful currency in accordance with
legislation of the European Community relating to Economic and Monetary
Union.
"Party"
means a party to this Agreement.
"Qualifying
Lender" has the meaning given to it in Clause 15 (Tax gross-up and
indemnities).
"Quotation
Day" means, in relation to any period for which an interest rate is to
be determined two Business Days before the first day of that period unless
market practice differs in the Relevant Interbank Market, in which case the
Quotation Day will be determined by the Facility 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).
"Reference
Banks" means the principal London offices of Citibank, N.A., Deutsche
Bank AG, London Branch and HSBC Bank plc or such other banks as may be appointed
by the Facility Agent in consultation with the Borrower.
"Relevant
Interbank Market" means the London interbank market.
"Repeating
Representations" means each of the representations set out in Clauses
20.1 (Status) to 20.4
(Power and Authority) (inclusive) and
Clause 20.11 (Pari passu
ranking).
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8
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"Revolving
Facility" means the revolving loan facility made available under this
Agreement as described in Clause 2.1 (The
Revolving Facility).
"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:
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(a)
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made
or to be made on the same day that a maturing Revolving Facility
Loan is
due to be repaid;
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(b)
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the
aggregate amount of which is equal to or less than the maturing Revolving
Facility Loan; and
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(c)
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made
or to be made for the purpose of refinancing a maturing Revolving
Facility
Loan.
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"Screen
Rate" means the British Bankers' Association Interest Settlement Rate
for dollars for the relevant period, displayed on the appropriate page of the
Reuters screen. If the agreed page is replaced or service ceases to be
available, the Facility Agent may specify another page or service displaying
the
appropriate rate after consultation with the Borrower and the
Lenders.
"Security"
means a mortgage, charge, pledge, lien or other security interest securing
any
obligation of any person.
"Selection
Notice" means a notice substantially in the form set out in Part II of
Schedule 3 (Requests) given in accordance
with Clause 12 (Interest
Periods).
"Specified
Time" means a time determined in accordance with Schedule 6 (Timetables).
"Subsidiary"
means in relation to any company or corporation, a company or
corporation:
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(a)
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which
is controlled, directly or indirectly, by the first mentioned company
or
corporation;
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(b)
|
more
than half the issued share capital of which is beneficially owned,
directly or indirectly by the first mentioned company or corporation;
or
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(c)
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which
is a Subsidiary of another Subsidiary of the first mentioned company
or
corporation,
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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.
"Swingline
Commitment" means:
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9
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(a)
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in
relation to a Swingline Lender on the date of this Agreement, the
amount
set opposite its name in Part II of Schedule 1 (The Lenders) and
the amount of any other Swingline Commitment transferred to it under
this
Agreement; and
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(b)
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in
relation to any other Swingline Lender, the amount of any Swingline
Commitment transferred to it under this
Agreement,
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to
the
extent not cancelled, reduced or transferred by it under this
Agreement.
"Swingline
Facility" means the dollar swingline loan facility made available under
this Agreement as described in Clause 7
(Utilisation - Swingline Loans).
"Swingline
Lender" means each Lender at any time that has made a loan available
under the Swingline Facility.
"Swingline
Loan" means a loan made or to be made under the Swingline Facility or
the principal amount outstanding for the time being of that loan.
"Syndicated
Loans" means Financial Indebtedness by way of loans or other credit
raised by the Borrower or by any wholly-owned member of the Group (in each
case
other than indebtedness owing to another member of the Group) and guaranteed
by
the Borrower save for any credit raised under bilateral credit lines (save
where
such bilateral lines exceed $500,000,000) provided that such
amounts cannot be double counted for the purposes of this definition and the
definition of "Capital Markets Debt Instruments".
"Syndication
Date" means the day specified by the Arranger as the day on which
primary syndication of the Facility is completed.
"Target"
means MedImmune, Inc..
"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).
"Taxes
Act" means the Income and Corporation Taxes Xxx 0000.
"Termination
Date" means the day falling 364 days from the date of this
Agreement.
"Total
Commitments" means the aggregate of the Commitments, being
$15,000,000,000 at the date of this Agreement.
"Total
Swingline Commitments" means the aggregate of the Swingline
Commitments, being $5,000,000,000 on the date of this Agreement.
"Transfer
Certificate" means a certificate substantially in the form set out in
Schedule 5 (Form of Transfer Certificate)
or any other form agreed between the Facility Agent and the
Borrower.
-
10
-
"Transfer
Date" means, in relation to a transfer, the later of:
|
(a)
|
the
proposed Transfer Date specified in the Transfer Certificate;
and
|
|
(b)
|
the
date on which the Facility Agent executes the Transfer
Certificate.
|
"Unpaid
Sum" means any sum due and payable but unpaid by the Borrower under the
Finance Documents.
"Utilisation"
means a utilisation of the Facility.
"Utilisation
Date" means the date of a Utilisation, being the date on which the
relevant Loan is to be made.
"Utilisation
Request" means:
|
(a)
|
in
the case of a Utilisation of the Revolving Facility a notice substantially
in the form set out in Part I of Schedule 3 (Requests);
and
|
|
(b)
|
in
the case of a Utilisation of the Swingline Facility a notice substantially
in the form set out in Part II of Schedule 3
(Requests).
|
"VAT"
means value added tax as provided for in the Value Added Tax Xxx 0000 and any
other tax of a similar nature.
|
1.2
|
Construction
|
|
(a)
|
Unless
a contrary indication appears any reference in this Agreement
to:
|
|
(i)
|
an
"Agent", the "Facility Agent", the
"Swingline Agent", the "Arranger", any
"Finance Party", any "Lender", the
"Borrower" or any "Party" shall be
construed so as to include its successors in title, permitted assigns
and
permitted transferees;
|
|
(ii)
|
"assets"
includes present and future properties, revenues and rights of every
description;
|
|
(iii)
|
a
"Finance Document" or any other agreement or instrument
is a reference to that Finance Document or other agreement or instrument
as amended, novated, supplemented, extended, replaced or
restated;
|
|
(iv)
|
"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;
|
|
(v)
|
a
"person" includes 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);
|
|
(vi)
|
a
"regulation" includes any regulation, rule, official
directive or guideline (whether or not having the force of law) but
if not
having the
|
-
11
-
force
of
law, compliance with which is customary) of any governmental, intergovernmental
or supranational body, agency, department or regulatory, self-regulatory or
other authority or organisation;
|
(vii)
|
a
provision of law is a reference to that provision as amended or
re-enacted; and
|
|
(viii)
|
a
time of day is a reference to London
time.
|
|
(b)
|
Section,
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 and an Event of Default is "continuing" if it has
not been remedied or waived.
|
|
1.3
|
Currency
Symbols and Definitions
|
"$"
and "dollars" denote the lawful currency of the United States
of America.
|
1.4
|
Third
party rights
|
A
person
who is not a Party has no right under the Contracts (Rights of Third Parties)
Xxx 0000 to enforce or to enjoy the benefit of any term of this
Agreement.
-
12
-
SECTION
2
THE
FACILITY
|
2.
|
THE
FACILITY
|
|
2.1
|
The
Revolving Facility
|
Subject
to
the terms of this Agreement, the Lenders make available to the Borrower a dollar
revolving loan facility in an aggregate amount equal to the Total Commitments,
including within it the Swingline Facility in a maximum aggregate amount equal
to the Total Swingline Commitments.
|
2.2
|
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 the Borrower shall
be a
separate and independent debt.
|
|
(c)
|
A
Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce its rights under the Finance
Documents.
|
|
3.
|
PURPOSE
|
|
3.1
|
Purpose
|
The
Borrower shall apply all amounts borrowed by it under the Revolving Facility
for
general corporate purposes including the refinancing of a Swingline Loan and/or
towards financing or refinancing, directly or indirectly:
|
(a)
|
the
Acquisition;
|
|
(b)
|
payments
to holders of options pursuant to the Merger
Agreement;
|
|
(c)
|
any
costs and expenses in relation to the Acquisition;
and
|
|
(d)
|
any
financial indebtedness of Target or any of its
Subsidiaries.
|
|
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
|
The
Borrower may not deliver a Utilisation Request unless the Facility Agent has
received all of the documents and other evidence listed in Schedule 2 (Conditions
-
13
-
precedent)
in form and substance reasonably satisfactory to the Facility
Agent. The Facility Agent shall notify the Borrower and the Lenders
promptly upon being so reasonably satisfied.
|
4.2
|
Further
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 4.4 (Utilisations during the Certain Funds
Period) 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 Loan,
no
Default is continuing or would result from the proposed Loan;
and
|
|
(b)
|
the
Repeating Representations to be made by the Borrower are true in
all
material respects.
|
|
4.3
|
Maximum
number of Loans
|
The
Borrower may not deliver a Utilisation Request if as a result of the proposed
Utilisation 20 or more Loans would be outstanding.
|
4.4
|
Utilisations
during the Certain Funds
Period
|
|
(a)
|
|
(i)
|
no
Major Default is continuing or would result from the proposed
Utilisation; and
|
|
(ii)
|
all
the Major Representations are true.
|
|
(b)
|
|
(i)
|
cancel
any of its Commitments to the extent to do so would prevent or limit
the
making of a Certain Funds
Utilisation;
|
|
(ii)
|
rescind,
terminate or cancel this Agreement or the Facility or exercise any
similar
right or remedy or make or enforce any claim under the Finance Documents
it may have to the extent to do so would prevent or limit the making
of a
Certain Funds Utilisation;
|
|
(iii)
|
refuse
to participate in the making of a Certain Funds
Utilisation;
|
-
14
-
|
(iv)
|
exercise
any right of set-off or counterclaim in respect of a Utilisation
to the
extent to do so would prevent or limit the making of a Certain Funds
Utilisation; or
|
|
(v)
|
cancel,
accelerate or cause repayment or prepayment of any amounts owing
hereunder
or under any other Finance Document to the extent to do so would
prevent
or limit the making of a Certain Funds
Utilisation,
|
|
|
provided
that immediately upon the expiry of the Certain Funds Period
all
such rights, remedies and entitlements shall be available to the
Finance
Parties notwithstanding that they may not have been used or been
available
for use during the Certain Funds
Period.
|
-
15
-
SECTION
3
UTILISATION
|
5.
|
UTILISATION
- REVOLVING FACILITY LOANS
|
|
5.1
|
Delivery
of a Utilisation Request
|
The
Borrower may utilise the Revolving Facility by delivery to the Facility Agent
of
a duly completed Utilisation Request not later than the Specified
Time.
|
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)
|
the
proposed Utilisation Date is a Business Day within the Availability
Period;
|
|
(ii)
|
the
currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount);
and
|
|
(iii)
|
the
proposed Interest Period complies with Clause 12 (Interest
Periods).
|
|
(b)
|
Only
one Revolving Facility Loan may be requested in each Utilisation
Request.
|
|
5.3
|
Currency
and amount
|
|
(a)
|
The
currency specified in a Utilisation Request must be
dollars.
|
|
(b)
|
The
amount of the proposed Revolving Facility Loan must be an amount
which is
not more than the Available Facility and which is a minimum of $25,000,000
or if less, the Available Facility.
|
|
5.4
|
Lenders'
participation
|
|
(a)
|
If
the applicable conditions set out in this Agreement have been met,
each
Lender shall make its participation in each Revolving Facility Loan
available by the Utilisation Date through its Facility
Office.
|
|
(b)
|
The
amount of each Lender's participation in each Revolving Facility
Loan will
be equal to the proportion borne by its Available Commitment to the
Available Facility immediately prior to making the Revolving Facility
Loan.
|
|
(c)
|
The
Facility Agent shall notify each Lender of the amount of each Revolving
Facility Loan and the amount of its participation in that Revolving
Facility Loan, in each case by the Specified
Time.
|
|
5.5
|
Cancellation
of Commitment
|
|
(a)
|
The
Total Commitments shall be immediately cancelled at the end of the
Availability Period.
|
-
16
-
|
6.
|
SWINGLINE
FACILITY
|
|
6.1
|
General
|
|
(a)
|
Clause
4.2 (Further conditions
precedent);
|
|
(b)
|
Clause
5 (Utilisation - Revolving Facility
Loans);
|
|
(c)
|
Clause
11 (Interest) as it applies on the
calculation of interest on a Revolving Facility Loan but not default
interest on an overdue amount; and
|
|
(d)
|
Clause
12 (Interest
Periods),
|
do
not
apply to Swingline Loans.
|
6.2
|
Swingline
Facility
|
Subject
to
the terms of this Agreement, the Swingline Lenders make available to the
Borrower the Swingline Facility in an amount equal to the Total Swingline
Commitments.
|
6.3
|
Purpose
|
The
Borrower shall apply all amounts borrowed by it under the Swingline Facility
solely towards repaying any note or other instrument maturing under a U.S.
dollar commercial paper programme of a member of the Group. A
Swingline Loan may not be applied in repayment or prepayment of another
Swingline Loan.
|
7.
|
UTILISATION
- SWINGLINE LOANS
|
|
7.1
|
Delivery
of a Utilisation Request for Swingline
Loans
|
|
(a)
|
The
Borrower may utilise the Swingline Facility by delivery to the Swingline
Agent of a duly completed Utilisation Request not later than the
Specified
Time.
|
|
(b)
|
Each
Utilisation Request for a Swingline Loan must be sent by fax to the
Swingline Agent and to the Facility Agent to each fax number notified
by
the Swingline Agent and the Facility Agent to the Borrower for this
purpose, with a copy to each Agent at the address referred to in
Clause 31
(Notices).
|
|
7.2
|
Completion
of a Utilisation Request for Swingline
Loans
|
|
(a)
|
Each
Utilisation Request for a Swingline Loan is irrevocable and will
not be
regarded as having been duly completed
unless:
|
|
(i)
|
it
specifies that it is for a Swingline
Loan;
|
|
(ii)
|
the
proposed Utilisation Date is a New York Business Day within the
Availability Period;
|
|
(iii)
|
the
Swingline Loan is denominated in
dollars;
|
|
(iv)
|
the
amount of the proposed Swingline Loan is an amount which is not more
than
the Available Facility and is a minimum of $10,000,000 or, if less,
the
Available Facility; and
|
-
17
-
|
(v)
|
the
amount of the proposed Swingline Loan is an amount, which when aggregated
with all outstanding Swingline Loans, does not exceed the Total Swingline
Commitments;
|
|
(vi)
|
the
proposed Interest Period:
|
|
(A)
|
does
not overrun the Termination Date;
|
|
(B)
|
is
a
period of not more than 7 New York Business Days;
and
|
|
(C)
|
ends
on a New York Business Day.
|
|
(b)
|
Only
one Swingline Loan may be requested in each Utilisation
Request.
|
|
7.3
|
Swingline
Lender's participation
|
|
(a)
|
If
the conditions set out in this Agreement have been met, each Swingline
Lender shall make its participation in each Swingline Loan available
through its relevant Facility Office in New York City or in such
other
location as it notifies in writing to the Swingline
Agent.
|
|
(b)
|
The
Swingline Lenders will only be obliged to comply with paragraph (a)
above
if on the date of the Utilisation Request and on the proposed Utilisation
Date:
|
|
(i)
|
no
Default is continuing or would result from the proposed Utilisation;
and
|
|
(ii)
|
the
Repeating Representations to be made by the Borrower are true in
all
material respects.
|
|
(c)
|
The
amount of each Swingline Lender's participation in each Swingline
Loan
will be equal to the proportion borne by its Available Commitment
to the
Available Facility immediately prior to making the Swingline
Loan.
|
|
(d)
|
The
Swingline Agent shall notify each Swingline Lender of the amount
of each
Swingline Loan and its participation in that Swingline Loan in each
case
by the Specified Time.
|
|
7.4
|
Relationship
with the Revolving
Facility
|
|
(a)
|
This
subclause applies when a Swingline Loan is outstanding or is to be
borrowed.
|
|
(b)
|
The
Revolving Facility may be used by way of Swingline Loans. The
Swingline Facility is not independent of the Revolving
Facility.
|
|
(c)
|
Notwithstanding
any other term of this Agreement a Lender is only obliged to participate
in a Loan to the extent that it would not result in its participation
(and
that of a Lender which is its Affiliate) in the Loans exceeding its
Commitment.
|
-
18
-
|
(d)
|
The
amount of a proposed Swingline Loan must not, when aggregated with
all
outstanding Swingline Loans, exceed the Total Swingline
Commitments.
|
|
8.
|
SWINGLINE
LOANS
|
|
8.1
|
Repayment
of Swingline Loans
|
The
Borrower shall repay each Swingline Loan on the last day of its Interest
Period.
|
8.2
|
Voluntary
Prepayment of Swingline
Loans
|
|
(a)
|
The
Borrower may prepay at any time the whole of any Swingline
Loan.
|
|
(b)
|
Unless
a contrary indication appears in this Agreement, any part of the
Swingline
Facility which is prepaid may be reborrowed in accordance with the
terms
of this Agreement.
|
|
8.3
|
Interest
|
|
(a)
|
The
rate of interest on each Swingline Loan for any day during its Interest
Period is the higher of:
|
|
(i)
|
the
prime commercial lending rate in U.S. Dollars announced by the Swingline
Agent at the Specified Time and in force on that day;
and
|
|
(ii)
|
0.25 per
cent. per annum over the rate per annum determined by the Swingline
Agent
to be the Federal Funds Rate (as published by the Federal Reserve
Bank of
New York) for that day.
|
|
(b)
|
The
Swingline Agent shall promptly notify the Swingline Lenders and the
Borrower of the rate of interest under paragraph (a)
above.
|
|
(c)
|
If
any day during an Interest Period is not a New York Business Day,
the rate
of interest on a Swingline Loan on that day will be the rate applicable
to
the immediately preceding New York Business
Day.
|
|
(d)
|
The
Borrower shall pay accrued interest on each Swingline Loan on the
last day
of its Interest Period.
|
|
8.4
|
Interest
Period
|
|
(a)
|
Each
Swingline Loan has one Interest Period
only.
|
|
(b)
|
The
Interest Period for a Swingline Loan must be selected in the relevant
Utilisation Request.
|
-
19
-
SECTION
4
REPAYMENT,
PREPAYMENT AND CANCELLATION
|
9.
|
REPAYMENT
|
|
9.1
|
Repayment
of Loans
|
The
Borrower shall repay each Revolving Facility Loan on the last day of its
Interest Period.
|
10.
|
PREPAYMENT
AND CANCELLATION
|
|
10.1
|
Illegality
|
If,
at any
time, it is unlawful in any applicable jurisdiction for a Lender to perform
any
of its obligations as contemplated by this Agreement or to fund or maintain
its
participation in any Loan:
|
(a)
|
that
Lender shall promptly notify the Facility Agent upon becoming aware
of
that event;
|
|
(b)
|
upon
the Facility Agent notifying the Borrower, the Commitment of that
Lender
will be immediately cancelled; and
|
|
(c)
|
the
Borrower shall repay that Lender's participation in the Loans made
to the
Borrower on the last day of the Interest Period for each Loan occurring
after the Facility Agent has notified the Borrower or, if earlier,
the
date specified by the Lender in the notice delivered to the Facility
Agent
(being no earlier than the last day of any applicable grace period
permitted by law).
|
|
10.2
|
Change
of control
|
|
(a)
|
If
any person or group of persons acting in concert gains control of
the
Borrower:
|
|
(i)
|
the
Borrower shall promptly notify the Facility Agent upon becoming aware
of
that event;
|
|
(ii)
|
a
Lender shall not be obliged to fund a Utilisation (except for a Rollover
Loan);
|
|
(iii)
|
if
a
Lender so requires and notifies the Facility Agent within 30 days
of the
Borrower notifying the Facility Agent of the event, the Facility
Agent
shall, by not less than 30 days notice to the Borrower, cancel the
Commitment of that Lender and declare the participation of that Lender
in
all outstanding Loans, together with accrued interest and all other
amounts accrued under the Finance Documents, immediately due and
payable,
at which time the Commitment of that Lender will be cancelled and
all such
outstanding amounts will become immediately due and
payable.
|
-
20
-
|
(b)
|
For
the purpose of paragraph (a) above "control"
means:
|
|
(i)
|
the
power (whether by way of ownership of shares, proxy, contract, agency
or
otherwise) to:
|
|
(A)
|
cast,
or control the casting of, more than one-half of the maximum number
of
votes that might be cast at a general meeting of the Borrower;
or
|
|
(B)
|
appoint
or remove all, or the majority, of the directors or other equivalent
officers of the Borrower ; or
|
|
(C)
|
give
directions with respect to the operating and financial policies of
the
Borrower which the directors or other equivalent officers of the
Borrower
are obliged to comply with; or
|
|
(ii)
|
the
holding of more than one-half of the issued share capital of the
Borrower
(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).
|
|
(iii)
|
For
the purpose of paragraph (a) above "acting in concert"
means, a group of persons who, pursuant to an agreement or understanding
(whether formal or informal), actively co-operate, through the acquisition
by any of them, either directly or indirectly, of shares in the Borrower,
to obtain or consolidate control of the
Borrower.
|
|
10.3
|
Cancellation
|
|
(a)
|
To
the extent any cancellation of commitments hereunder reduces the
Total
Commitment to an amount greater than or equal to £5,000,000,000, such
cancellation shall apply in respect of the Commitment but not in
respect
of the Swingline Commitment; or
|
|
(b)
|
to
the extent any cancellation of commitments reduces the Total Commitment
to
an amount below $5,000,000,000, such cancellation shall apply equally
and
to both of the Commitment and the Swingline
Commitment.
|
|
10.4
|
Voluntary
cancellation
|
The
Borrower may, if it gives the Facility Agent not less than 3 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 $25,000,000) of the Available
Facility. Any cancellation under this Clause 10.4 shall reduce the Commitments of the Lenders
rateably.
|
10.5
|
Debt
Issuance
|
|
(a)
|
The
Borrower shall (unless the Majority Lenders otherwise agree) prepay
Loans
and cancel the Total Commitments in an amount equal to the Net Proceeds
of:
|
-
21
-
|
(i)
|
the
issue of any Capital Market Debt Instruments;
and
|
|
(ii)
|
any
Syndicated Loans;
|
provided
that such prepayment shall only be made if the Net Proceeds are greater
than or equal to $500,000,000.
|
(b)
|
The
Borrower shall (unless the Majority Lenders otherwise agree) prepay
Loans
in an amount equal to the Net Proceeds of any issue of Commercial
Paper
(other than Commercial Paper issued to refinance Commercial
Paper issued from time to time and Commercial Paper issued to
directly fund the Acquisition) in excess of an aggregate amount of
$500,000,000.
|
|
(c)
|
The
Borrower shall apply any amounts under paragraph (a) and (b) above
as soon
as is practicable (taking into account, without limitation, any then
current Interest Periods) but in any event no later than the date
falling
10 days after receipt of such
amount.
|
|
(d)
|
The
Borrower shall notify the Facility Agent promptly (and the Facility
Agent,
upon receiving such notice, shall notify the Lenders promptly) of
any
prepayment to be made under this Clause 10.5.
|
|
(e)
|
Any
cancellation under this Clause 10.5 shall
reduce the Commitments of the Lenders
rateably.
|
|
10.6
|
Voluntary
prepayment of Revolving Facility
Loans
|
The
Borrower may, if it gives the Facility Agent not less than 5 Business Days'
(or
such shorter period as the Majority Lenders may agree) prior notice, prepay
the
whole or any part of any Revolving Facility Loan (but, if in part, being an
amount that reduces the amount of the Revolving Facility Loan by a minimum
amount of $25,000,000).
|
10.7
|
Right
of repayment and cancellation in relation to a single
Lender
|
|
(a)
|
If:
|
|
(i)
|
any
sum payable to any Lender by the Borrower is required to be increased
under paragraph (c) of Clause 15.2 (Tax
gross-up);
|
|
(ii)
|
|
(iii)
|
any
Lender notifies the Facility Agent of its Additional Cost Rate under
paragraph 3 of Schedule 4 (Mandatory Cost
formulae) or the Facility Agent makes a determination of the
Additional Cost Rate of any Lender under paragraph 3 of Schedule 4 (Mandatory Cost
formulae),
|
the
Borrower may, whilst (in the case of paragraphs (i) and (ii) above) the
circumstance giving rise to the requirement for indemnification continues or
(in
the case of paragraph (iii) above) that Additional Cost Rate is greater than
-
22
-
zero,
give
the Facility Agent notice of cancellation of the Commitment of that Lender
and
its intention to procure the repayment of that Lender's participation in the
Loans.
|
(b)
|
On
receipt of a notice referred to in paragraph (a) above, the Commitment
of
that Lender shall immediately be reduced to
zero.
|
|
(c)
|
On
the last day of each Interest Period which ends after the Borrower
has
given notice under paragraph (a) above (or, if earlier, the date
specified
by the Borrower in that notice), the Borrower shall repay that Lender's
participation in that Loan.
|
|
10.8
|
Restrictions
|
|
(a)
|
Any
notice of cancellation or prepayment given by any Party under this
Clause 10 shall 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.
|
|
(b)
|
Any
prepayment under this Agreement shall be made together with accrued
interest on the amount prepaid and, except in the case of a prepayment
pursuant to paragraph (a) of subclause 8.2
(Voluntary Prepayment of Swingline Loans), subject to any Break
Costs, without premium or penalty.
|
|
(c)
|
Unless
a contrary indication appears in the Agreement, any part of the Facility
which is prepaid may be reborrowed in accordance with the terms of
this
Agreement.
|
|
(d)
|
The
Borrower shall not repay or prepay all or any part of the Loans or
cancel
all or any part of the Commitments except at the times and in the
manner
expressly provided for in this
Agreement.
|
|
(e)
|
No
amount of the Total Commitments cancelled under this Agreement may
be
subsequently reinstated.
|
|
(f)
|
If
the Facility Agent receives a notice under this Clause 10 it shall promptly forward a copy of
that
notice to either the Borrower or the affected Lender, as
appropriate.
|
-
23
-
SECTION
5
COSTS
OF UTILISATION
|
11.
|
INTEREST
|
|
11.1
|
Calculation
of interest
|
The
rate
of interest on each Revolving Facility Loan for each Interest Period is the
percentage rate per annum which is the aggregate of the applicable:
|
(a)
|
Margin;
|
|
(b)
|
LIBOR;
and
|
|
(c)
|
Mandatory
Cost, if any.
|
|
11.2
|
Payment
of interest
|
On
the
last day of each Interest Period the Borrower shall pay accrued interest on
the
Loan to which that Interest Period relates (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).
|
11.3
|
Default
interest
|
|
(a)
|
If
the Borrower 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 one
per cent
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 Facility Agent (acting reasonably). Any
interest accruing under this Clause 11.3 shall
be immediately payable by the Borrower on demand by the Facility
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 one per cent. 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.
|
-
24
-
|
11.4
|
Notification
of rates of interest
|
The
Facility Agent shall promptly notify the Lenders and the Borrower of the
determination of a rate of interest under this Agreement.
|
12.
|
INTEREST
PERIODS
|
|
12.1
|
Selection
of Interest Periods
|
|
(a)
|
The
Borrower may select an Interest Period for a Revolving Facility Loan
in
the Utilisation Request for that Revolving Facility
Loan.
|
|
(b)
|
Subject
to this Clause 12, the Borrower may select an
Interest Period of one, two, three or six Months or any other period
agreed between the Borrower and the Facility Agent (acting on the
instructions of all the Lenders).
|
|
(c)
|
An
Interest Period for a Revolving Facility Loan shall not extend beyond
the
Termination Date.
|
|
(d)
|
Each
Interest Period for a Loan shall start on the Utilisation
Date.
|
|
(e)
|
A
Revolving Facility Loan has one Interest Period
only.
|
|
(f)
|
Prior
to the Syndication Date, Interest Periods for a Revolving Facility
Loan
shall be one Month or such other period as the Facility Agent and
the
Borrower 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.
|
|
12.2
|
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).
|
13.
|
CHANGES
TO THE CALCULATION OF
INTEREST
|
|
13.1
|
Absence
of quotations
|
Subject
to
Clause 13.2 (Market disruption), if LIBOR
is to be determined by reference to the Reference Banks but a 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 Reference Banks.
|
13.2
|
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;
|
|
(ii)
|
the
rate notified to the Facility Agent by that Lender as soon as practicable
and in any event before interest is due to be paid in respect of
that
Interest Period, to be that which expresses as a percentage rate
per
|
-
25
-
annum
the
cost to that Lender of funding its participation in that Loan from whatever
source it may reasonably select; and
|
(iii)
|
the
Mandatory Cost, if any, applicable to that Lender's participation
in the
Loan.
|
|
(b)
|
In
this Agreement "Market Disruption Event"
means:
|
|
(i)
|
at
or about noon on the Quotation Day for the relevant Interest Period
the
Screen Rate is not available and none or only one of the Reference
Banks
supplies a rate to the Facility Agent to determine LIBOR for dollars
and
the relevant Interest Period; or
|
|
(ii)
|
before
close of business in London on the Quotation Day for the relevant
Interest
Period, the Facility Agent receives notifications from a Lender or
Lenders
(whose participations in a Loan exceed 50 per cent. of that Loan)
that the
cost to it of obtaining matching deposits in the Relevant Interbank
Market
would be in excess of LIBOR.
|
|
13.3
|
Alternative
basis of interest or
funding
|
|
(a)
|
If
a
Market Disruption Event occurs and the Facility Agent or the Borrower
so
requires, the Facility Agent and the Borrower shall enter into
negotiations (for a period of not more than thirty days) with a view
to
agreeing a substitute basis for determining the rate of
interest.
|
|
(b)
|
Any
alternative basis agreed pursuant to paragraph (a) above shall, with
the
prior consent of all the Lenders and the Borrower, be binding on
all
Parties.
|
|
13.4
|
Break
Costs
|
|
(a)
|
The
Borrower shall, within three Business Days of demand by a Finance
Party,
pay to that Finance Party its Break Costs attributable to all or
any part
of a Loan or Unpaid Sum being paid by the Borrower on a day other
than the
last day of an Interest Period for that Loan or Unpaid
Sum.
|
|
(b)
|
Each
Lender shall, as soon as reasonably practicable after a demand by
the
Facility Agent, provide a certificate confirming the amount of its
Break
Costs for any Interest Period in which they
accrue.
|
|
14.
|
FEES
|
|
14.1
|
Commitment
fee
|
|
(a)
|
The
Borrower shall pay to the Facility Agent (for the account of each
Lender)
a fee in dollars computed at the rate of 25.0 per cent. of the Margin
per
annum on that Lender's Available Commitment for the Availability
Period.
|
|
(b)
|
The
accrued commitment fee is payable on the last day of each successive
period of three Months which ends during the Availability Period,
on the
last day of the Availability Period and, if cancelled in full, on
the
cancelled
|
-
26
-
amount
of
the relevant Lender's Commitment at the time the cancellation is
effective.
|
14.2
|
Arrangement
fee
|
The
Borrower shall pay to the Arranger an arrangement fee in the amount and at
the
times agreed in a Fee Letter.
|
14.3
|
Agency
fee
|
The
Borrower shall pay to each Agent (for its own account) an agency fee in the
amount and at the times agreed in a Fee Letter.
-
27
-
SECTION
6
ADDITIONAL
PAYMENT OBLIGATIONS
|
15.
|
TAX
GROSS UP AND INDEMNITIES
|
|
15.1
|
Definitions
|
|
(a)
|
In
this Agreement:
|
"Protected
Party" means a Finance Party which is or will be subject to any
liability, or required to make any payment, for or on account of Tax in relation
to a sum received or receivable (or any sum deemed for the purposes of Tax
to be
received or receivable) under a Finance Document.
"Qualifying
Lender" means:
|
(i)
|
a
Lender (other than a Lender within sub-paragraph (ii) below) which
is
beneficially entitled to interest payable to that Lender in respect
of an
advance under a Finance Document and
is:
|
|
(A)
|
a
Lender:
|
|
(1)
|
which
is a bank (as defined for the purpose of section 879 of ITA) making
an
advance under a Finance Document;
or
|
|
(2)
|
in
respect of an advance made under a Finance Document by a person that
was a
bank (as defined for the purpose of section 879 of ITA) at the time
that
that advance was made,
|
and
which
is within the charge to United Kingdom corporation tax as respects any payments
of interest made in respect of that advance; or
|
(B)
|
a
Lender which is:
|
|
(1)
|
a
company resident in the United Kingdom for United Kingdom tax
purposes;
|
|
(2)
|
a
partnership each member of which
is:
|
|
|
(a)
|
a
company so resident in the United Kingdom;
or
|
|
|
(b)
|
a
company not so resident in the United Kingdom which carries on a
trade in
the United Kingdom through a permanent establishment and which brings
into
account in computing its chargeable profits (for the purposes of
section
11(2) of the Taxes Act) the whole of any share of interest payable
in
respect of that advance that falls to it by reason of sections 114
and 115
of the Taxes Act; or
|
-
28
-
|
(3)
|
a
company not so resident in the United Kingdom which carries on a
trade in
the United Kingdom through a permanent establishment and which brings
into
account interest payable in respect of that advance in computing
the
chargeable profits (for the purposes of section 11(2) of the Taxes
Act) of
that company; or
|
|
(C)
|
a
Treaty Lender; or
|
|
(ii)
|
a
Lender which is a building society (as defined for the purpose of
section
880 of ITA) making an advance under a Finance
Document.
|
"Tax
Confirmation" means a confirmation by a Lender that the person
beneficially entitled to interest payable to that Lender in respect of an
advance under a Finance Document is either:
|
(i)
|
a
company resident in the United Kingdom for United Kingdom tax
purposes;
|
|
(ii)
|
a
partnership each member of which
is:
|
|
(A)
|
a
company so resident in the United Kingdom;
or
|
|
(B)
|
a
company not so resident in the United Kingdom which carries on a
trade in
the United Kingdom through a permanent establishment and which brings
into
account in computing its chargeable profits (for the purposes of
section
11(2) of the Taxes Act) the
whole
of any share of interest payable in respect of that advance that
falls to
it by reason of sections 114 and 115 of the Taxes Act;
or
|
|
(iii)
|
a
company not so resident in the United Kingdom which carries on a
trade in
the United Kingdom through a permanent establishment and which brings
into
account interest payable in respect of that advance in computing
the
chargeable profits (for the purposes of section 11(2) of the Taxes
Act) of
that company.
|
"Tax
Credit" means a credit against, relief or remission for, or repayment
of any Tax.
"Tax
Deduction" means a deduction or withholding for or on account of Tax
from a payment under a Finance Document.
"Tax
Payment" means either the increase in a payment made by the Borrower to
a Finance Party under Clause 15.2 (Tax
gross-up) or a payment under Clause 15.3
(Tax indemnity).
"Treaty
Lender" means a Lender which:
|
(i)
|
is
treated as a resident of a Treaty State for the purposes of the
Treaty;
|
-
29
-
|
(ii)
|
does
not carry on a business in the United Kingdom through a permanent
establishment with which that Lender's participation in the Loan
is
effectively connected; and
|
|
(iii)
|
is
fully eligible for the benefit of full exemption under the Treaty
from tax
imposed by the United Kingdom on interest payable to it by the
Borrower.
|
"Treaty
State" means a jurisdiction having a double taxation agreement (a
"Treaty") with the United Kingdom which makes provision for
full exemption from tax imposed by the United Kingdom on interest.
|
(b)
|
Unless
a contrary indication appears, in this Clause 15 a reference to "determines" or "determined"
means a determination made in the absolute discretion of the person
making
the determination.
|
|
15.2
|
Tax
gross-up
|
|
(a)
|
The
Borrower shall make all payments to be made by it without any Tax
Deduction, unless a Tax Deduction is required by
law.
|
|
(b)
|
The
Borrower shall promptly upon becoming aware that it must make a Tax
Deduction (or that there is any change in the rate or the basis of
a Tax
Deduction) notify the Facility Agent
accordingly. Similarly, a Lender shall notify the Facility
Agent on becoming so aware in respect of a payment payable to that
Lender. If the Facility Agent receives such notification from a
Lender it shall notify the
Borrower.
|
|
(c)
|
If
a
Tax Deduction is required by law to be made by the Borrower, the
amount of
the payment due from the Borrower shall be increased to an amount
which
(after making any Tax Deduction) leaves an amount equal to the payment
which would have been due if no Tax Deduction had been
required.
|
|
(d)
|
The
Borrower is not required to make an increased payment to a Lender
under
paragraph (c) above for a Tax Deduction in respect of tax imposed
by the
United Kingdom from a payment of interest on a Loan, if on the date
on
which the payment falls due:
|
|
(i)
|
the
payment could have been made to the relevant Lender without a Tax
Deduction if it was a Qualifying Lender, but on that date that Lender
is
not or has ceased to be a Qualifying Lender other than as a result
of any
change after the date it became a Lender under this Agreement in
(or in
the interpretation, administration, or application of) any law or
Treaty,
or any published practice or concession of any relevant taxing authority;
or
|
|
(ii)
|
|
(A)
|
the
relevant Lender is a Qualifying Lender solely under sub-paragraph
(i)(B)
of the definition of Qualifying
Lender;
|
-
30
-
|
(B)
|
an
officer of HM Revenue & Customs has given (and not revoked) a
direction (a "Direction") under section 931 of ITA (as
that provision has effect on the date on which the relevant Lender
became
a Party) which relates to that payment and that Lender has received
from
the Borrower a certified copy of that Direction;
and
|
|
(C)
|
the
payment could have been made to the Lender without any Tax Deduction
in
the absence of that Direction; or
|
|
(iii)
|
the
relevant Lender is a Qualifying Lender solely under sub-paragraph
(i)(B)
of the definition of Qualifying Lender and it has not, other than
by
reason of any change after the date of this Agreement in (or in the
interpretation, administration or application of) any law or any
published
practice or concession of any relevant taxing authority given a Tax
Confirmation to the Borrower; or
|
|
(iv)
|
the
relevant Lender is a Treaty Lender and the Borrower is able to demonstrate
that the payment could have been made to the Lender without the Tax
Deduction had that Lender complied with its obligations under paragraph
(g) below.
|
|
(e)
|
If
the Borrower is required to make a Tax Deduction, it shall make that
Tax
Deduction and any payment required in connection with that Tax Deduction
within the time allowed and in the minimum amount required by
law.
|
|
(f)
|
Within
thirty days of making either a Tax Deduction or any payment required
in
connection with that Tax Deduction, the Borrower shall deliver to
the
Facility Agent for the Finance Party entitled to the payment evidence
reasonably satisfactory to that Finance Party that the Tax Deduction
has
been made or (as applicable) any appropriate payment paid to the
relevant
taxing authority.
|
|
(g)
|
A
Treaty Lender and the Borrower shall co-operate in completing any
procedural formalities necessary for the Borrower to obtain authorisation
to make that payment without a Tax
Deduction.
|
|
15.3
|
Tax
indemnity
|
|
(a)
|
The
Borrower shall (within three Business Days of demand by the Facility
Agent) pay to a Protected Party an amount equal to the loss, liability
or
cost which that Protected Party, acting reasonably, determines will
be or
has been suffered by way of Tax by that Protected Party in respect
of a
Finance Document.
|
|
(b)
|
Paragraph
(a) above shall not apply:
|
|
(i)
|
except
to the extent the Tax arises by reason of a change after the date
of this
Agreement in the law of the relevant taxing jurisdiction;
or
|
-
31
-
|
(ii)
|
with
respect to any Tax assessed on a Finance
Party:
|
|
(A)
|
under
the law of the jurisdiction in which that Finance Party is incorporated
or, if different, the jurisdiction (or jurisdictions) in which that
Finance Party is treated as resident for any tax
purposes;
|
|
(B)
|
under
the law of the jurisdiction in which that Finance Party's Facility
Office
is; or
|
|
(C)
|
under
the law of a jurisdiction to which the Protected Party's participation
under the Finance Documents is treated as being attributable, to
any
extent, for tax purposes,
|
if
that
Tax is imposed on or by reference to income, profits or gains; or
|
(iii)
|
to
the extent a loss, liability or
cost:
|
|
(A)
|
is
compensated for by an increased payment under Clause 15.2 (Tax gross-up);
or
|
|
(B)
|
|
(c)
|
A
Protected Party making, or intending to make a claim under paragraph
(a)
above shall promptly notify the Facility Agent of the event which
will
give, or has given, rise to the claim, following which the Facility
Agent
shall notify the Borrower.
|
|
(d)
|
A
Protected Party shall, on receiving a payment from the Borrower under
this
Clause 15.3, notify the Facility
Agent.
|
|
15.4
|
Tax
Credit
|
If
the
Borrower makes a Tax Payment and the relevant Finance Party determines
that:
|
(a)
|
a
Tax Credit is attributable either to an increased payment of which
that
Tax Payment forms part, or to that Tax Payment;
and
|
|
(b)
|
that
Finance Party has obtained, utilised and retained that Tax
Credit,
|
the
Finance Party shall pay an amount to the Borrower which that Finance Party
determines will leave it (after that payment) in the same after-Tax position
as
it would have been in had the Tax Payment not been required to be made by the
Borrower.
|
15.5
|
Stamp
taxes
|
The
Borrower shall pay and, within three Business Days of demand, indemnify each
Finance Party against any cost, loss or liability that Finance Party incurs
in
relation to
-
32
-
all
stamp
duty, registration and other similar Taxes payable in respect of any Finance
Document.
|
15.6
|
Value
added tax
|
|
(a)
|
All
amounts set out, or expressed to be payable under a Finance Document
by
any Party to a Finance Party which (in whole or in part) constitute
the
consideration for VAT purposes shall be deemed to be exclusive of
any VAT
which is chargeable on such supply, and accordingly, subject to paragraph
(c) below, if VAT is chargeable on any supply made by any
Finance Party to any Party under a Finance Document, that Party shall
pay
to the Finance Party (in addition to and at the same time as paying
the
consideration) an amount equal to the amount of the VAT (and such
Finance
Party shall promptly provide an appropriate VAT invoice to such
Party).
|
|
(b)
|
If
VAT is chargeable on any supply made by any Finance Party (the
"Supplier") to any other Finance Party (the
"Recipient") under a Finance Document, and any Party (the
"Relevant Party") is required by the terms of any Finance
Document to pay an amount equal to the consideration for such supply
to
the Supplier (rather than being required to reimburse the Recipient
in
respect of that consideration), such Party shall also pay to the
Supplier
(in addition to and at the same time as paying such amount) an amount
equal to the amount of such VAT. The Recipient will promptly
pay to the Relevant Party an amount equal to any credit or repayment
from
the relevant tax authority which it reasonably determines relates
to the
VAT chargeable on that supply.
|
|
(c)
|
Where
a Finance Document requires any Party to reimburse a Finance Party
for any
costs or expenses, that Party shall also at the same time pay and
indemnify the Finance Party against all VAT incurred by the Finance
Party
in respect of the costs or expenses to the extent that the Finance
Party
reasonably determines that neither it nor any other member of any
group of
which it is a member for VAT purposes is entitled to credit or repayment
from the relevant tax authority in respect of the
VAT.
|
|
16.
|
INCREASED
COSTS
|
|
16.1
|
Increased
costs
|
|
(a)
|
Subject
to Clause 16.3 (Exceptions) the
Borrower shall, within three Business Days of a demand by the Facility
Agent, pay for the account of a Finance Party the amount of any Increased
Costs incurred by that Finance Party or any of its Affiliates as
a result
of (i) the introduction of or any change in (or in the interpretation,
administration or application of) any law or regulation or (ii) compliance
with any law or regulation made after the date of this
Agreement.
|
-
33
-
|
(b)
|
In
this Agreement "Increased Costs"
means:
|
|
(i)
|
a
reduction in the rate of return from the Facility or on a Finance
Party's
(or its Affiliate's) overall
capital;
|
|
(ii)
|
an
additional or increased cost; or
|
|
(iii)
|
a
reduction of any amount due and payable under any Finance
Document,
|
which
is
incurred or suffered by a Finance Party or any of its Affiliates to the extent
that it is attributable to that Finance Party having entered into its Commitment
or funding or performing its obligations under any Finance
Document.
|
16.2
|
Increased
cost claims
|
|
(a)
|
A
Finance Party intending to make a claim pursuant to Clause 16.1 (Increased costs) shall notify the
Facility Agent of the event giving rise to the claim, following which
the
Facility Agent shall promptly notify the
Borrower.
|
|
(b)
|
Each
Finance Party shall, as soon as practicable after a demand by the
Facility
Agent, provide a certificate confirming the amount of its Increased
Costs.
|
|
16.3
|
Exceptions
|
|
(a)
|
Clause
16.1 (Increased costs) does not apply
to the extent any Increased Cost
is:
|
|
(i)
|
Tax
or is attributable to Tax;
|
|
(ii)
|
compensated
for by the payment of the Mandatory Cost;
or
|
|
(iii)
|
not
notified to the Borrower within three months of the date it is suffered;
or
|
|
(iv)
|
attributable
to the wilful breach by the relevant Finance Party or its Affiliates
of
any law or regulation.
|
|
17.
|
OTHER
INDEMNITIES
|
|
17.1
|
Currency
indemnity
|
|
(a)
|
If
any sum due from the Borrower under the Finance Documents (a
"Sum"), or any order, judgment or award given or made
in
relation to a Sum, has to be converted from the currency (the
"First Currency") in which that Sum is payable into
another currency (the "Second Currency") for the purpose
of:
|
|
(i)
|
making
or filing a claim or proof against the
Borrower;
|
|
(ii)
|
obtaining
or enforcing an order, judgment or award in relation to any litigation
or
arbitration proceedings,
|
-
34
-
the
Borrower shall as an independent obligation, within three Business Days of
demand, indemnify each Finance Party to whom that Sum is due against any cost,
loss or liability arising directly (unless suffered by reason of the gross
negligence or wilful default of a Finance Party) out of or as a result of the
conversion including any discrepancy between (A) the rate of exchange used
to
convert that Sum from the First Currency into the Second Currency and (B) the
rate or rates of exchange available to that person at the time of its receipt
of
that Sum.
|
(b)
|
The
Borrower waives any right it may have in any jurisdiction to pay
any
amount under the Finance Documents in a currency or currency unit
other
than that in which it is expressed to be
payable.
|
|
17.2
|
Other
indemnities
|
The
Borrower shall, within three Business Days of demand, indemnify each Finance
Party against any cost, loss or liability incurred by that Finance Party
directly (unless suffered by reason of the gross negligence or wilful default
of
a Finance Party) as a result of:
|
(a)
|
the
occurrence of any Event of Default;
|
|
(b)
|
a
failure by the Borrower to pay any amount due under a Finance Document
on
its due date, including without limitation, any cost, loss or liability
arising as a result of Clause 28 (Sharing
among the Finance Parties);
|
|
(c)
|
funding,
or making arrangements to fund, its participation in a Loan requested
by
the Borrower in a Utilisation Request but not made by reason of the
operation of any one or more of the provisions of this Agreement
(other
than by reason of default or negligence by that Finance Party
alone);
|
|
(d)
|
a
Loan (or part of a Loan) not being prepaid in accordance with a notice
of
prepayment given by the Borrower;
or
|
|
(e)
|
any
claim, investigation, litigation or proceeding (or the preparation
of any
defence with respect thereto) commenced or threatened by any person
in
relation to any of the Finance Documents or the transactions contemplated
therein, including without limitation, the Acquisition (whether or
not
made) or the use of the proceeds of the
Facility.
|
|
17.3
|
Indemnity
to the Facility Agent
|
The
Borrower shall promptly indemnify the Facility Agent, and also, in the case
of
paragraph (b) below, the Swingline Agent against any cost, loss or liability
incurred by that Agent (acting reasonably) as a result of:
|
(a)
|
investigating
any event which it reasonably believes is a Default;
or
|
|
(b)
|
acting
or relying on any notice, request or instruction which it reasonably
believes to be genuine, correct and appropriately
authorised.
|
-
35
-
|
18.
|
MITIGATION
BY THE LENDERS
|
|
18.1
|
Mitigation
|
|
(a)
|
Each
Finance Party shall, in consultation with the Borrower, take all
reasonable steps to mitigate any circumstances which arise and which
would
result in any amount becoming payable under or pursuant to, or cancelled
pursuant to, any of Clause 10.1
(Illegality), Clause 15 (Tax
gross-up and indemnities), Clause 16
(Increased costs) or paragraph 3 of Schedule 4 (Mandatory Cost formulae)
including (but not limited to) transferring its rights and obligations
under the Finance Documents to another Affiliate or Facility
Office.
|
|
(b)
|
Paragraph
(a) above does not in any way limit the obligations of the Borrower
under
the Finance Documents.
|
|
18.2
|
Limitation
of liability
|
|
(a)
|
The
Borrower shall indemnify each Finance Party for all costs and expenses
reasonably incurred by that Finance Party as a result of steps taken
by it
under Clause 18.1
(Mitigation).
|
|
(b)
|
A
Finance Party is not obliged to take any steps under Clause 18.1 (Mitigation) if, in the opinion of
that Finance Party (acting reasonably), to do so might reasonably
be
expected to be prejudicial to it.
|
|
19.
|
COSTS
AND EXPENSES
|
|
19.1
|
Transaction
expenses
|
The
Borrower shall promptly on demand pay the Agents and the Arranger the amount
of
all costs and expenses (including legal fees) reasonably and properly incurred
by any of them in connection with the negotiation, preparation, printing,
execution and syndication of:
|
(a)
|
this
Agreement and any other documents referred to in this Agreement;
and
|
|
(b)
|
any
other Finance Documents executed after the date of this
Agreement.
|
|
19.2
|
Amendment
costs
|
If
(a) the
Borrower requests an amendment, waiver or consent or (b) an amendment is
required pursuant to Clause 29.9 (Change of
currency), the Borrower shall, within three Business Days of demand,
reimburse the Facility Agent for the amount of all costs and expenses (including
legal fees) reasonably and properly incurred by the Facility Agent in responding
to, evaluating, negotiating or complying with that request or
requirement.
|
19.3
|
Enforcement
costs
|
The
Borrower shall, within three Business Days of demand, pay to each Finance Party
the amount of all costs and expenses (including legal fees) incurred by it
in
connection with the enforcement of, or the preservation of any rights under,
any
Finance Document.
-
36
-
SECTION
7
REPRESENTATIONS,
UNDERTAKINGS AND EVENTS OF DEFAULT
|
20.
|
REPRESENTATIONS
|
The
Borrower makes the representations and warranties set out in this Clause 20 to each Finance Party on the date of this Agreement
or, in relation to the representation and warranty set out in Clause 20.9 (Information Package) on the date of the
Information Package.
|
20.1
|
Status
|
|
(a)
|
It
is a corporation, duly incorporated and validly existing under the
law of
its jurisdiction of incorporation.
|
|
(b)
|
It
has the power to own its assets and carry on its business as it is
being
conducted.
|
|
20.2
|
Binding
obligations
|
The
obligations expressed to be assumed by it in each Finance Document are, subject
to any general principles of law or affecting creditors' rights generally,
legal, valid, binding and enforceable obligations.
|
20.3
|
Non-conflict
with other obligations
|
The
entry
into and performance by it of the Finance Documents do not and will not conflict
with:
|
(a)
|
any
law or regulation applicable to it;
|
|
(b)
|
its
constitutional documents; or
|
|
(c)
|
any
agreement or instrument binding upon it or any of its Subsidiaries
or any
of its or any of its Subsidiaries' assets, where such conflict would
have
a Material Adverse Effect.
|
|
20.4
|
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, the Finance Documents
to
which it is a party.
|
20.5
|
Validity
and admissibility in
evidence
|
All
Authorisations required:
|
(a)
|
to
enable it lawfully to enter into, exercise its rights and comply
with its
obligations in the Finance Documents to which it is a party;
and
|
|
(b)
|
to
make the Finance Documents to which it is a party admissible in evidence
in its jurisdiction of
incorporation,
|
have
been
obtained or effected and are in full force and effect.
-
37
-
|
20.6
|
Governing
law and enforcement
|
The
choice
of English law as the governing law of the Finance Documents will be recognised
and enforced in its jurisdiction of incorporation.
|
20.7
|
No
filing or stamp taxes
|
Under
the
law of its jurisdiction of incorporation it is not necessary that the Finance
Documents be filed, recorded or enrolled with any court or other authority
in
that jurisdiction or that any stamp, registration or similar tax be paid on
or
in relation to the Finance Documents.
|
20.8
|
No
default
|
|
(a)
|
No
Default or Event of Default is continuing or might reasonably be
expected
to result from the making of any
Utilisation.
|
|
(b)
|
No
other event or circumstance is outstanding which constitutes a default
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 might reasonably be expected to have a Material Adverse
Effect.
|
|
20.9
|
Information
Package
|
|
(a)
|
The
Information Package is true and accurate in all material respects
as at
its date.
|
|
(b)
|
Nothing
has occurred or been omitted from the Information Package and no
information has been given or withheld that results in the information
contained in the Information Package being untrue or misleading in
any
material respect as at its date.
|
|
20.10
|
Financial
statements
|
|
(a)
|
Its
Original Financial Statements were prepared in accordance with
GAAP.
|
|
(b)
|
Its
Original Financial Statements fairly represent the consolidated financial
condition and operations of the Group during the relevant financial
year.
|
|
(c)
|
There
has been no material adverse change in its business or the consolidated
financial condition of the Group since the date of the Original Financial
Statements
|
|
20.11
|
Pari
passu ranking
|
Its
payment obligations under the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law applying to
companies generally.
|
20.12
|
No
proceedings pending or
threatened
|
No
litigation, arbitration or administrative proceedings of or before any court,
arbitral body or agency which might reasonably be expected to have a Material
Adverse Effect have (to the best of its knowledge and belief) been started
or
threatened against it or any of its Subsidiaries.
-
38
-
|
20.13
|
Repetition
|
The
Repeating Representations are deemed to be made by the Borrower (by reference
to
the facts and circumstances then existing) on the date of each Utilisation
Request and the first day of each Interest Period.
|
21.
|
INFORMATION
UNDERTAKINGS
|
The
undertakings in this Clause 21 remain in force from
the date of this Agreement for so long as any amount is outstanding under the
Finance Documents or any Commitment is in force.
|
21.1
|
Financial
statements
|
The
Borrower shall supply to the Facility Agent in sufficient copies for all the
Lenders:
|
(a)
|
as
soon as the same become available, but in any event within 150 days
after
the end of each of its financial years, its audited consolidated
financial
statements for that financial year;
and
|
|
(b)
|
as
soon as the same become available, but in any event within 90 days
after
the end of the first half of each of its financial years, its consolidated
financial statements for that financial half
year.
|
|
21.2
|
Requirements
as to financial statements
|
|
(a)
|
Each
set of financial statements delivered by the Borrower pursuant to
Clause
21.1 (Financial statements) gives a
true and fair view of the Borrower as fairly representing its financial
condition as at the date at which those financial statements were
drawn
up.
|
|
(b)
|
The
Borrower shall procure that each set of financial statements delivered
pursuant to Clause 21.1 (Financial
statements) is prepared using
GAAP.
|
|
21.3
|
Information:
miscellaneous
|
The
Borrower shall supply to the Facility Agent (in sufficient copies for all the
Lenders, if the Facility Agent so requests):
|
(a)
|
all
documents dispatched by the Borrower to its shareholders (or any
class of
them) or its creditors generally at the same time as they are dispatched;
and
|
|
(b)
|
promptly,
such further information regarding the financial condition, business
and
operations of any member of the Group as any Finance Party (through
the
Facility Agent) may reasonably
request.
|
|
21.4
|
Notification
of default
|
|
(a)
|
The
Borrower shall notify the Facility Agent of any Default (and the
steps, if
any, being taken to remedy it) promptly upon becoming aware of its
occurrence.
|
-
39
-
|
(b)
|
Promptly
upon a request by the Facility Agent, the Borrower shall confirm
to the
Facility Agent that no Default is continuing (or if a Default is
continuing, specifying the Default and the steps, if any, being taken
to
remedy it).
|
|
21.5
|
Use
of websites
|
|
(a)
|
The
Borrower may satisfy its obligation under this Agreement to deliver
any
information in relation to those Lenders ( the "Website
Lenders") who accept this method of communication by posting this
information onto an electronic website designated by the Borrower
and the
Facility Agent (the "Designated Website")
if:
|
|
(i)
|
the
Facility Agent expressly agrees (after consultation with each of
the
Lenders) that it will accept communication of the information by
this
method;
|
|
(ii)
|
both
the Borrower and the Facility Agent are aware of the address of and
any
relevant password specifications for the Designated Website;
and
|
|
(iii)
|
the
information is in a format previously agreed between the Borrower
and the
Facility Agent.
|
If
any
Lender (a "Paper Form Lender") does not agree to the delivery
of information electronically then the Facility Agent shall notify the Borrower
accordingly and the Borrower shall supply the information to the Facility Agent
(in sufficient copies for each Paper Form Lender) in paper form. In
any event the Borrower shall supply the Facility Agent with at least one copy
in
paper form of any information required to be provided by it.
|
(b)
|
The
Facility Agent shall supply each Website Lender with the address
of and
any relevant password specifications for the Designated Website following
designation of that website by the Borrower and the Facility
Agent.
|
|
(c)
|
The
Borrower shall promptly upon becoming aware of its occurrence notify
the
Facility Agent if:
|
|
(i)
|
the
Designated Website cannot be accessed due to technical
failure;
|
|
(ii)
|
the
password specifications for the Designated Website
change;
|
|
(iii)
|
any
new information which is required to be provided under this Agreement
is
posted onto the Designated Website;
|
|
(iv)
|
any
existing information which has been provided under this Agreement
and
posted onto the Designated Website is amended;
or
|
|
(v)
|
the
Borrower becomes aware that the Designated Website or any information
posted onto the Designated Website is or has been infected by any
electronic virus or similar
software.
|
-
40
-
If
the
Borrower notifies the Facility Agent under paragraph (c)(i) or paragraph (c)(v)
above, all information to be provided by the Borrower under this Agreement
after
the date of that notice shall be supplied in paper form unless and until the
Facility Agent and each Website Lender is satisfied that the circumstances
giving rise to the notification are no longer continuing.
|
(d)
|
Any
Website Lender may request, through the Facility Agent, one paper
copy of
any information required to be provided under this Agreement which
is
posted onto the Designated Website. The Borrower shall comply
with any such request within ten Business
Days.
|
|
21.6
|
"Know
your customer" checks
|
|
(a)
|
If:
|
|
(i)
|
the
introduction of or any change in (or in the interpretation, administration
or application of) any law or regulation made after the date of this
Agreement;
|
|
(ii)
|
any
change in the status of the Borrower after the date of this Agreement;
or
|
|
(iii)
|
a
proposed assignment or transfer by a Lender of any of its rights
and
obligations under this Agreement to a party that is not a Lender
prior to
such assignment or transfer,
|
obliges
an
Agent or any Lender (or, in the case of paragraph (iii) above, any prospective
new Lender) to comply with "know your customer" or similar identification
procedures in circumstances where the necessary information is not already
available to it, the Borrower shall promptly upon the request of any Agent
or
any Lender supply, or procure the supply of, such documentation and other
evidence as is reasonably requested by that Agent (for itself or on behalf
of
any Lender) or any Lender (for itself or, in the case of the event described
in
paragraph (iii) above, on behalf of any prospective new Lender) in order for
that Agent, such Lender or, in the case of the event described in paragraph
(iii) above, any prospective new Lender to carry out and be satisfied it has
complied with all necessary "know your customer" or other similar checks under
all applicable laws and regulations pursuant to the transactions contemplated
in
the Finance Documents.
|
(b)
|
Each
Lender shall promptly upon the request of any Agent supply, or procure
the
supply of, such documentation and other evidence as is reasonably
requested by that Agent (for itself) in order for that Agent to carry
out
and be satisfied it has complied with all necessary "know your customer"
or other similar checks under all applicable laws and regulations
pursuant
to the transactions contemplated in the Finance
Documents.
|
-
41
-
|
22.
|
GENERAL
UNDERTAKINGS
|
The
undertakings in this Clause 22 remain in force from
the date of this Agreement for so long as any amount is outstanding under the
Finance Documents or any Commitment is in force.
|
22.1
|
Authorisations
|
The
Borrower shall promptly:
|
(a)
|
obtain,
comply with and do all that is necessary to maintain in full force
and
effect; and
|
|
(b)
|
on
request, supply certified copies to the Facility Agent
of,
|
any
Authorisation required under any law or regulation of its jurisdiction of
incorporation to enable it to perform its obligations under the Finance
Documents and to ensure the legality, validity, enforceability or admissibility
in evidence in its jurisdiction of incorporation of any Finance
Document.
|
22.2
|
Compliance
with laws
|
The
Borrower shall comply in all respects with all laws to which it may be subject,
if failure so to comply would have a Material Adverse Affect.
|
22.3
|
Negative
pledge
|
|
(a)
|
The
Borrower shall not (and shall ensure that no other member of the
Group
will) create or permit to subsist any Security over any of its
assets.
|
|
(b)
|
Paragraph
(a) above does not apply to:
|
|
(i)
|
any
Security provided by any member of the Group in the ordinary course
of its
banking arrangements for the purpose of netting debit and credit
balances
or otherwise in the ordinary course of its treasury
activities;
|
|
(ii)
|
any
lien arising by operation of law and in the ordinary course of
business;
|
|
(iii)
|
any
Security over or affecting any asset acquired by a member of the
Group
after the date of this Agreement
if:
|
|
(A)
|
the
Security was not created in contemplation of the acquisition of that
asset
by a member of the Group;
|
|
(B)
|
the
principal amount secured has not been increased in contemplation
of, or
since the acquisition of that asset by a member of the Group;
and
|
|
(C)
|
the
Security is removed or discharged within six months of the date of
acquisition of such asset;
|
-
42
-
|
(iv)
|
any
Security over or affecting any asset of any company which becomes
a member
of the Group after the date of this Agreement, where the Security
is
created prior to the date on which that company becomes a member
of the
Group, if:
|
|
(A)
|
the
Security was not created in contemplation of the acquisition of that
company;
|
|
(B)
|
the
principal amount secured has not increased in contemplation of or
since
the acquisition of that company;
and
|
|
(C)
|
the
Security is removed or discharged within six months of that company
becoming a member of the Group; and
|
|
(v)
|
any
Security securing indebtedness the principal amount of which (when
aggregated with the principal amount of any other indebtedness which
has
the benefit of Security given by any member of the Group other than
any
permitted under paragraphs (i) to (v) above) does not exceed 15 per
cent.
of the Consolidated Net Tangible Assets of the Group (or its equivalent
in
another currency or currencies).
|
|
22.4
|
Change
of business
|
The
Borrower shall ensure that no substantial change is made to the general nature
of the core business of the Group from that carried on at the date of this
Agreement.
|
22.5
|
Insurance
|
The
Borrower shall maintain insurances on and in relation to its business and assets
with reputable underwriters or insurance companies against those risks and
to
the extent as is usual for companies carrying on the same or substantially
similar business which may include an element of self-insurance (or insurance
through a captive insurer).
|
22.6
|
Acquisition
Undertakings
|
The
Borrower shall:
|
(a)
|
comply
in all material respects with all applicable laws and regulations
relevant
in the context of the Acquisition;
|
|
(b)
|
keep
the Facility Agent informed of any material developments or material
changes to the terms or conditions of the Merger Agreement;
and
|
|
(c)
|
promptly
supply to the Facility Agent:
|
|
(i)
|
copies
of all material notices or announcements received or issued by it
in
relation to the Acquisition;
|
|
(ii)
|
any
other information regarding the progress of the Acquisition as the
Facility Agent may reasonably
request,
|
-
43
-
except
to
the extent that it is prohibited from doing so by the terms of a confidentiality
undertaking or by any applicable law or regulation.
|
23.
|
EVENTS
OF DEFAULT
|
Each
of
the events or circumstances set out in this Clause 23 is an Event of Default (save as for Clause 23.10 (Acceleration).
|
23.1
|
Non-payment
|
The
Borrower does not pay on the due date any amount payable pursuant to a Finance
Document at the place and in the currency in which it is expressed to be payable
unless:
|
(a)
|
its
failure to pay is caused by:
|
|
(i)
|
administrative
or technical error; or
|
|
(ii)
|
a
Disruption Event; and
|
|
(b)
|
payment
is made within 3 Business Days of its due
date.
|
|
23.2
|
Other
obligations
|
|
(a)
|
The
Borrower does not comply in all material respects with any provision
of
the Finance Documents (other than those referred to in Clause 23.1
(Non-payment).
|
|
(b)
|
No
Event of Default under paragraph (a) above will occur if the failure
to
comply is capable of remedy and is remedied within 20 Business Days
of the
Facility Agent giving notice to the Borrower or the Borrower becoming
aware of the failure to comply.
|
|
23.3
|
Misrepresentation
|
Any
representation or statement made or deemed to be made by the Borrower in the
Finance Documents is or proves to have been incorrect or misleading in any
material respect when made or deemed to be made, provided that
no Event of Default will occur under this Clause 23.3 (Misrepresentation) if the failure
to
comply is capable of being remedied and is remedied within 20 Business Days
of
the Facility Agent giving notice to the Borrower or the Borrower becoming aware
of the failure to comply.
|
23.4
|
Cross
Acceleration
|
|
(a)
|
Any
Financial Indebtedness of any member of the Group is not paid when
due nor
within any originally applicable grace
period.
|
|
(b)
|
Any
Financial Indebtedness of any member of the Group is declared to
be or
otherwise becomes due and payable prior to its specified maturity
as a
result of an event of default (however
described).
|
|
(c)
|
Any
commitment for any Financial Indebtedness of any member of the Group
is
cancelled or suspended by a creditor of any member of the Group as
a
result of an event of default (however
described).
|
-
44
-
|
(d)
|
No
Event of Default will occur under this Clause 23.4 if the aggregate amount of Financial
Indebtedness or commitment for Financial Indebtedness falling within
paragraphs (a) to (c) above is less than $200,000,000 (or its equivalent
in any other currency or
currencies).
|
|
23.5
|
Insolvency
|
|
(a)
|
The
Borrower or Material Subsidiary is unable or admits inability to
pay its
debts as they fall due, suspends making payments on any of its debts
or,
by reason of actual or anticipated financial difficulties, commences
negotiations with one or more of its creditors with a view to rescheduling
any of its indebtedness.
|
|
(b)
|
A
moratorium is declared in respect of any indebtedness of the Borrower
or
any Material Subsidiary.
|
|
23.6
|
Insolvency
proceedings
|
Any
corporate action, legal proceedings or other procedure or step is taken in
relation to:
|
(a)
|
the
suspension of payments, a moratorium of any indebtedness, winding-up,
dissolution, administration or reorganisation (by way of voluntary
arrangement, scheme of arrangement or otherwise) of the Borrower
or any
Material Subsidiary other than a solvent liquidation or reorganisation
of
the Borrower or any Material
Subsidiary;
|
|
(b)
|
a
composition, compromise, assignment or arrangement with any creditor
of
the Borrower or any Material Subsidiary by reason of actual or anticipated
financial difficulties;
|
|
(c)
|
the
appointment of a liquidator (other than in respect of a solvent
liquidation of a Material Subsidiary), receiver, administrative receiver,
administrator, compulsory manager or other similar officer in respect
of
the Borrower or a Material Subsidiary or any of their assets;
or
|
|
(d)
|
enforcement
of any Security over any assets of the Borrower or any Material
Subsidiary, having an aggregate value of
$50,000,000.
|
or
any
analogous procedure or step is taken in any jurisdiction.
|
23.7
|
Creditors'
process
|
Any
expropriation, attachment, sequestration, distress or execution affects any
asset or assets of the Borrower or any Material Subsidiary having an aggregate
value of $50,000,000 by reason of creditor action and is not discharged within
21 days.
|
23.8
|
Unlawfulness
|
It
is or
becomes unlawful for the Borrower to perform any of its obligations under the
Finance Documents.
-
45
-
|
23.9
|
Repudiation
|
The
Borrower repudiates a Finance Document or evidences in writing an intention
to
repudiate a Finance Document.
|
23.10
|
Acceleration
|
On
and at
any time after the occurrence of an Event of Default and whilst it is continuing
the Facility Agent may, and shall if so directed by the Majority Lenders, by
notice to the Borrower:
|
(a)
|
cancel
the Total Commitments, at which time they shall immediately be
cancelled;
|
|
(b)
|
declare
that all or part of the Loans, together with accrued interest, and
all
other amounts accrued or outstanding under the Finance Documents
be
immediately due and payable, at which time they shall become immediately
due and payable; and/or
|
|
(c)
|
declare
that all or part of the Loans be payable on demand, at which time
they
shall immediately become payable on demand by the Facility Agent
on the
instructions of the Majority
Lenders.
|
-
46
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SECTION
8
CHANGES
TO PARTIES
|
24.
|
CHANGES
TO THE LENDERS
|
|
24.1
|
Assignments
and transfers by the
Lenders
|
Subject
to
this Clause 24, a Lender (the "Existing
Lender") may:
|
(a)
|
assign
any of its rights; or
|
|
(b)
|
transfer
by novation any of its rights and
obligations,
|
to
another
bank (the "New Lender") provided
that:
|
(c)
|
any
Lender which transfers all or any part of its Commitment separately
from
its Swingline Commitment shall ensure that as a result of such transfer
it
does not reduce its Commitment to any amount which is less than its
or its
Affiliates Swingline Commitment;
and
|
|
(d)
|
any
Swingline Lender which transfers all or any part of its Swingline
Commitment shall in addition transfer or procure its Affiliate to
transfer, as the case may be, a portion of its or its Affiliate's
Commitment sufficient that the New Lender's Commitment post-transfer,
or
the New Lender's Affiliates Commitment post-transfer, as the case
may be,
is at least equal to the New Lender's Swingline Commitment
post-transfer.
|
|
24.2
|
Conditions
of assignment or transfer
|
|
(a)
|
The
consent of the Borrower is required for an assignment or transfer
by an
Existing Lender, unless the assignment or transfer is to another
Lender or
an Affiliate of a Lender or an Event of Default is
continuing.
|
|
(b)
|
The
consent of the Borrower to an assignment or transfer must not be
unreasonably withheld or delayed. The Borrower will be deemed
to have given its consent ten Business Days after the Existing Lender
has
requested it unless consent is expressly refused by the Borrower
within
that time.
|
|
(c)
|
The
consent of the Borrower to an assignment or transfer must not be
withheld
solely because the assignment or transfer may result in an increase
to the
Mandatory Cost.
|
|
(d)
|
Each
assignment or transfer of any Lender's participation shall be in
a minimum
amount of $25,000,000 unless the assignment or transfer is of the
whole
amount of that Lender's participation under this
Agreement.
|
|
(e)
|
An
assignment will only be effective
on:
|
|
(i)
|
receipt
by the Facility Agent of written confirmation from the New Lender
(in form
and substance satisfactory to the Facility Agent) that the New Lender
will
assume the same obligations to the other Finance Parties as it would
have
been under if it was an Original Lender;
and
|
-
47
-
|
(ii)
|
performance
by the Facility Agent of all necessary "know your
customer" or other similar checks under all applicable laws and
regulations in relation to such assignment to a New Lender, the completion
of which the Facility Agent shall promptly notify to the Existing
Lender
and the New Lender.
|
|
(f)
|
A
transfer will only be effective if the procedure set out in Clause
24.5 (Procedure for transfer) is
complied with.
|
|
(g)
|
If:
|
|
(i)
|
a
Lender assigns or transfers any of its rights or obligations under
the
Finance Documents or changes its Facility Office;
and
|
|
(ii)
|
as
a
result of circumstances existing or changes proposed at the date
the
assignment, transfer or change occurs, the Borrower would be obliged
to
make a payment to the New Lender or Lender acting through its new
Facility
Office under Clause 15 (Tax gross-up and
indemnities) or Clause 16 (Increased
costs),
|
then
the
New Lender or Lender acting through its new Facility Office is only entitled
to
receive payment under those Clauses to the same extent as the Existing Lender
or
Lender acting through its previous Facility Office would have been if the
assignment, transfer or change had not occurred.
|
24.3
|
Assignment
or transfer fee
|
The
New
Lender shall, on the date upon which an assignment or transfer takes effect,
pay
to the Facility Agent (for its own account) a fee of $2,500.
|
24.4
|
Limitation
of responsibility of Existing
Lenders
|
|
(a)
|
Unless
expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New
Lender
for:
|
|
(i)
|
the
legality, validity, effectiveness, adequacy or enforceability of
the
Finance Documents or any other
documents;
|
|
(ii)
|
the
financial condition of the
Borrower;
|
|
(iii)
|
the
performance and observance by the Borrower of its obligations under
the
Finance Documents or any other documents;
or
|
|
(iv)
|
the
accuracy of any statements (whether written or oral) made in or in
connection with any Finance Document or any other
document,
|
and
any
representations or warranties implied by law are excluded.
-
48
-
|
(b)
|
Each
New Lender confirms to the Existing Lender and the other Finance
Parties
that it:
|
|
(i)
|
has
made (and shall continue to make) its own independent investigation
and
assessment of the financial condition and affairs of the Borrower
and its
related entities in connection with its participation in this Agreement
and has not relied exclusively on any information provided to it
by the
Existing Lender in connection with any Finance Document;
and
|
|
(ii)
|
will
continue to make its own independent appraisal of the creditworthiness
of
the Borrower and its related entities whilst any amount is or may
be
outstanding under the Finance Documents or any Commitment is in
force.
|
|
(c)
|
Nothing
in any Finance Document obliges an Existing Lender
to:
|
|
(i)
|
accept
a re-transfer from a New Lender of any of the rights and obligations
assigned or transferred under this Clause 24;
or
|
|
(ii)
|
support
any losses directly or indirectly incurred by the New Lender by reason
of
the non-performance by the Borrower of its obligations under the
Finance
Documents or otherwise.
|
|
24.5
|
Procedure
for transfer
|
|
(a)
|
Subject
to the conditions set out in Clause 24.2
(Conditions of assignment or transfer) a transfer is effected in
accordance with paragraph (c) below when the Facility Agent executes
an
otherwise duly completed Transfer Certificate delivered to it by
the
Existing Lender and the New Lender. The Facility Agent shall,
subject to paragraph (b) below, as soon as reasonably practicable
after
receipt by it of a duly completed Transfer Certificate appearing
on its
face to comply with the terms of this Agreement and delivered in
accordance with the terms of this Agreement, execute that Transfer
Certificate.
|
|
(b)
|
The
Facility Agent shall only be obliged to execute a Transfer Certificate
delivered to it by the Existing Lender and the New Lender once it
is
satisfied it has complied with all necessary "know your customer"
or other
similar checks under all applicable laws and regulations in relation
to
the transfer to such New Lender.
|
|
(c)
|
On
the Transfer Date:
|
|
(i)
|
to
the extent that in the Transfer Certificate the Existing Lender seeks
to
transfer by novation its rights and obligations under the Finance
Documents the Borrower and the Existing Lender shall be released
from
further obligations towards one another under the Finance Documents
and
their respective rights against one another under the Finance Documents
shall be cancelled (being the "Discharged Rights and
Obligations");
|
-
49
-
|
(ii)
|
the
Borrower and the New Lender shall assume obligations towards one
another
and/or acquire rights against one another which differ from the Discharged
Rights and Obligations only insofar as the Borrower and the New Lender
have assumed and/or acquired the same in place of the Borrower and
the
Existing Lender;
|
|
(iii)
|
the
Facility Agent, the Arranger, the New Lender and the other Lenders
shall
acquire the same rights and assume the same obligations between themselves
as they would have acquired and assumed had the New Lender been an
Original Lender with the rights and/or obligations acquired or assumed
by
it as a result of the transfer and to that extent the Facility Agent,
the
Arranger and the Existing Lender shall each be released from further
obligations to each other under the Finance Documents;
and
|
|
(iv)
|
the
New Lender shall become a Party as a
"Lender".
|
|
24.6
|
Copy
of Transfer Certificate to
Borrower
|
The
Facility Agent shall, as soon as reasonably practicable after it has executed
a
Transfer Certificate, send to the Borrower a copy of that Transfer
Certificate.
|
24.7
|
Disclosure
of information
|
Any
Lender
may disclose to any of its Affiliates and any other person:
|
(a)
|
to
(or through) whom that Lender assigns or transfers (or may potentially
assign or transfer) all or any of its rights and obligations under
this
Agreement;
|
|
(b)
|
with
(or through) whom that Lender enters into (or may potentially enter
into)
any sub-participation in relation to, or any other transaction under
which
payments are to be made by reference to, this Agreement or the Borrower;
or
|
|
(c)
|
to
whom, and to the extent that, information is required to be disclosed
by
any applicable law or regulation,
|
any
information about the Borrower, the Group and the Finance Documents as that
Lender shall consider appropriate if, in relation to paragraphs (a) and (b)
above, the person to whom the information is to be given has entered into a
Confidentiality Undertaking.
|
24.8
|
Sub-Participation
|
An
Existing Lender may:
|
(a)
|
on
and after the Syndication Date, grant funded or unfunded
sub-participations to any person of any of its rights or obligations
where
such Existing Lender retains absolute discretion with regard to the
exercise of voting rights under this Agreement;
or
|
-
50
-
|
(b)
|
on
and after an Event of Default which is continuing, grant funded or
unfunded sub-participations to any person of any of its rights and
obligations where such Existing Lender no longer retains absolute
discretion with regard to the exercise of voting rights under this
Agreement,
|
but
may
not otherwise grant any such sub-participations.
|
25.
|
CHANGES
TO THE BORROWER
|
The
Borrower may not assign any of its rights or transfer any of its rights or
obligations under the Finance Documents.
-
51
-
SECTION
9
THE
FINANCE PARTIES
|
26.
|
ROLE
OF THE AGENTS AND THE
ARRANGER
|
|
26.1
|
Appointment
of the Agents
|
|
(a)
|
Each
other Finance Party appoints each Agent to act as its agent under
and in
connection with the Finance
Documents.
|
|
(b)
|
Each
other Finance Party authorises each Agent to exercise the rights,
powers,
authorities and discretions specifically given to such Agent under
or in
connection with the Finance Documents together with any other incidental
rights, powers, authorities and
discretions.
|
|
(c)
|
The
Facility Agent shall, unless the Borrower agrees otherwise, act out
of an
office in London .
|
|
(d)
|
The
Swingline Agent shall, unless the Borrower agrees otherwise, act
out of an
office in the state of New York.
|
|
26.2
|
Duties
of the Agents
|
|
(a)
|
Each
Agent shall promptly forward to a Party the original or a copy of
any
document which is delivered to that Agent for that Party by any other
Party.
|
|
(b)
|
Except
where a Finance Document specifically provides otherwise, an Agent
is not
obliged to review or check the adequacy, accuracy or completeness
of any
document it forwards to another
Party.
|
|
(c)
|
If
the Facility Agent receives notice from a Party referring to this
Agreement, describing a Default and stating that the circumstance
described is a Default, it shall promptly notify the other Finance
Parties.
|
|
(d)
|
If
an Agent is aware of the non-payment of any principal, interest,
commitment fee or other fee payable to a Finance Party (other than
an
Agent or the Arranger) under this Agreement it shall promptly notify
the
other Finance Parties.
|
|
(e)
|
The
Facility Agent shall promptly notify the Swingline Agent of any
assignments or transfers by a Lender pursuant to Clause 24 (Changes to the
Lenders).
|
|
(f)
|
Each
Agent's duties under the Finance Documents are solely mechanical
and
administrative in nature.
|
|
26.3
|
Role
of the Arranger
|
Except
as
specifically provided in the Finance Documents, the Arranger has no obligations
of any kind to any other Party under or in connection with any Finance
Document.
-
52
-
|
26.4
|
No
fiduciary duties
|
|
(a)
|
Nothing
in this Agreement constitutes an Agent or the Arranger as a trustee
or
fiduciary of any other person.
|
|
(b)
|
No
Agent nor the Arranger shall be bound to account to any Lender for
any sum
or the profit element of any sum received by it for its own
account.
|
|
26.5
|
Business
with the Group
|
Each
Agent
and the Arranger may accept deposits from, lend money to and generally engage
in
any kind of banking or other business with any member of the Group.
|
26.6
|
Rights
and discretions of the
Agent
|
|
(a)
|
Each
Agent may rely on:
|
|
(i)
|
any
representation, notice or document believed by it to be genuine,
correct
and appropriately authorised; and
|
|
(ii)
|
any
statement made by a director, authorised signatory or employee of
any
person regarding any matters which may reasonably be assumed to be
within
his knowledge or within his power to
verify.
|
|
(b)
|
Each
Agent may assume (unless it has received notice to the contrary in
its
capacity as agent for the Lenders)
that:
|
|
(i)
|
no
Default has occurred (unless it has actual knowledge of a Default
arising
under Clause 23.1 (Non-payment));
and
|
|
(ii)
|
any
right, power, authority or discretion vested in any Party or the
Majority
Lenders has not been exercised.
|
|
(c)
|
Each
Agent may engage, pay for and rely on the advice or services of any
lawyers, accountants, surveyors or other
experts.
|
|
(d)
|
Each
Agent may act in relation to the Finance Documents through its personnel
and agents.
|
|
(e)
|
Each
Agent may disclose to any other Party any information it reasonably
believes it has received as Agent under this
Agreement.
|
|
(f)
|
Notwithstanding
any other provision of any Finance Document to the contrary, neither
an
Agent nor the Arranger is obliged to do or omit to do anything if
it would
or might in its reasonable opinion constitute a breach of any law
or
regulation or a breach of a fiduciary duty or duty of
confidentiality.
|
|
26.7
|
Majority
Lenders' instructions
|
|
(a)
|
Unless
a contrary indication appears in a Finance Document, each Agent shall
(i)
exercise any right, power, authority or discretion vested in it as
Agent
in accordance with any instructions given to it by the Majority Lenders
(or, if so instructed by the Majority Lenders, refrain from exercising
any
right, power,
|
-
53
-
authority
or discretion vested in it as Agent) and (ii) not be liable for any act (or
omission) if it acts (or refrains from taking any action) in accordance with
an
instruction of the Majority Lenders.
|
(b)
|
Unless
a contrary indication appears in a Finance Document, any instructions
given by the Majority Lenders will be binding on all the Finance
Parties.
|
|
(c)
|
Each
Agent may refrain from acting in accordance with the instructions
of the
Majority Lenders (or, if appropriate, the Lenders) until it has received
such security as it may require for any cost, loss or liability (together
with any associated VAT) which it may incur in complying with the
instructions.
|
|
(d)
|
In
the absence of instructions from the Majority Lenders, (or, if
appropriate, the Lenders) each Agent may act (or refrain from taking
action) as it considers to be in the best interest of the
Lenders.
|
|
(e)
|
An
Agent is not authorised to act on behalf of a Lender (without first
obtaining that Lender's consent) in any legal or arbitration proceedings
relating to any Finance Document.
|
|
26.8
|
Responsibility
for documentation
|
No
Agent
nor the Arranger is responsible for:
|
(a)
|
the
adequacy, accuracy and/or completeness of any information (whether
oral or
written) provided by an Agent, the Arranger, the Borrower or any
other
person given in or in connection with any Finance Document, the
Information Package or the transactions contemplated by the Finance
Documents; or
|
|
(b)
|
the
legality, validity, effectiveness, adequacy or enforceability of
any
Finance Document or any other agreement, arrangement or document
entered
into, made or executed in anticipation of or in connection with any
Finance Document.
|
|
26.9
|
Exclusion
of liability
|
|
(a)
|
Without
limiting paragraph (b) below (and without prejudice to the provisions
of
paragraph (e) of Clause 29.10 (Disruption
to Payment Systems etc.), an Agent will not be liable (including,
without limitation, for negligence or any other category of liability
whatsoever) to any Finance Party for any action taken by it under
or in
connection with any Finance Document, unless directly caused by its
gross
negligence or wilful misconduct.
|
|
(b)
|
No
Party (other than an Agent) may take any proceedings against any
officer,
employee or agent of an Agent in respect of any claim it might have
against an Agent or in respect of any act or omission of any kind
by that
officer, employee or agent in relation to any Finance Document and
any
officer, employee or agent of an Agent may rely on this
Clause.
|
-
54
-
|
(c)
|
No
Agent will be liable for any delay (or any related consequences)
in
crediting an account with an amount required under the Finance Documents
to be paid by an Agent if that Agent has taken all necessary steps
as soon
as reasonably practicable to comply with the regulations or operating
procedures of any recognised clearing or settlement system used by
that
Agent for that purpose.
|
|
(d)
|
Nothing
in this Agreement shall oblige an Agent or the Arranger to carry
out any
"know your customer" or other checks in relation to any person on
behalf
of any Lender and each Lender confirms to that Agent and the Arranger
that
it is solely responsible for any such checks it is required to carry
out
and that it may not rely on any statement in relation to such checks
made
by that Agent or the Arranger.
|
|
26.10
|
Lenders'
indemnity to the Agents
|
Each
Lender shall (in proportion to its share of the Total Commitments or, if the
Total Commitments are then zero, to its share of the Total Commitments
immediately prior to their reduction to zero) indemnify each Agent, within
three
Business Days of demand, against any cost, loss or liability (including, without
limitation, for negligence or any other category of liability whatsoever)
incurred by such Agent (otherwise than by reason of such Agent's gross
negligence or wilful misconduct) (or, in the case of any cost, loss or liability
pursuant to Clause 29.10 (Disruption to Payment
Systems etc.) notwithstanding such Agent's negligence, gross negligence or
any other category of liability whatsoever but not including any claim based
on
the fraud of such Agent) in acting as Agent under the Finance Documents (unless
such Agent has been reimbursed by the Borrower pursuant to a Finance
Document).
|
26.11
|
Resignation
of the Agents
|
|
(a)
|
An
Agent may following consultation with the Borrower resign and appoint
one
of its Affiliates acting through an office in the United Kingdom
as
successor by giving notice to the other Finance Parties and the
Borrower.
|
|
(b)
|
Alternatively
an Agent may following consultation with the Borrower resign by giving
notice to the other Finance Parties and the Borrower, in which case
the
Majority Lenders (after consultation with the Borrower) may appoint
a
successor Agent.
|
|
(c)
|
If
the Majority Lenders have not appointed a successor Agent in accordance
with paragraph (b) above within 30 days after notice of resignation
was
given, the resigning Agent (after consultation with the Borrower)
may
appoint a successor Agent (acting through an office in the United
Kingdom).
|
|
(d)
|
The
retiring Agent shall, at its own cost, make available to a successor
Agent
such documents and records and provide such assistance as the successor
Agent may reasonably request for the purposes of performing its functions
as Agent under the Finance
Documents.
|
-
55
-
|
(e)
|
An
Agent's resignation notice shall only take effect upon the appointment
of
a successor.
|
|
(f)
|
Upon
the appointment of a successor, the retiring Agent shall be discharged
from any further obligation in respect of the Finance Documents but
shall
remain entitled to the benefit of this Clause 26. Its successor and each of the
other Parties shall have the same rights and obligations amongst
themselves as they would have had if such successor had been an original
Party.
|
|
(g)
|
After
consultation with the Borrower, the Majority Lenders may, by notice
to the
Agent, require it to resign in accordance with paragraph (b)
above. In this event, the Agent shall resign in accordance with
paragraph (b) above.
|
|
26.12
|
Confidentiality
|
|
(a)
|
In
acting as agent for the Finance Parties, each Agent shall be regarded
as
acting through its agency division which shall be treated as a separate
entity from any other of its divisions or
departments.
|
|
(b)
|
If
information is received by another division or department of the
Agent, it
may be treated as confidential to that division or department and
the
Agent shall not be deemed to have notice of
it.
|
|
26.13
|
Relationship
with the Lenders
|
|
(a)
|
Each
Agent may treat each Lender as a Lender, entitled to payments under
this
Agreement and acting through its Facility Office unless it has received
not less than five Business Days prior notice from that Lender to
the
contrary in accordance with the terms of this
Agreement.
|
|
(b)
|
Each
Lender shall supply the Facility Agent with any information required
by
the Facility Agent in order to calculate the Mandatory Cost in accordance
with Schedule 4 (Mandatory Cost
formulae).
|
|
26.14
|
Credit
appraisal by the Lenders
|
Without
affecting the responsibility of the Borrower for information supplied by it
or
on its behalf in connection with any Finance Document, each Lender confirms
to
each Agent and the Arranger that it has been, and will continue to be, solely
responsible for making its own independent appraisal and investigation of all
risks arising under or in connection with any Finance Document including but
not
limited to:
|
(a)
|
the
financial condition, status and nature of each member of the
Group;
|
|
(b)
|
the
legality, validity, effectiveness, adequacy or enforceability of
any
Finance Document and any other agreement, arrangement or document
entered
into, made or executed in anticipation of, under or in connection
with any
Finance Document;
|
|
(c)
|
whether
that Lender has recourse, and the nature and extent of that recourse,
against any Party or any of its respective assets under or in connection
with any Finance Document, the transactions contemplated by the Finance
|
-
56
-
Documents
or any other agreement, arrangement or document entered into, made or executed
in anticipation of, under or in connection with any Finance Document;
and
|
(d)
|
the
adequacy, accuracy and/or completeness of the Information Package
and any
other information provided by an Agent, any Party or by any other
person
under or in connection with any Finance Document, the transactions
contemplated by the Finance Documents or any other agreement, arrangement
or document entered into, made or executed in anticipation of, under
or in
connection with any Finance
Document.
|
|
26.15
|
Reference
Banks
|
If
a
Reference Bank (or, if a Reference Bank is not a Lender, the Lender of which
it
is an Affiliate) ceases to be a Lender, the Facility Agent shall (in
consultation with the Borrower) appoint another Lender or an Affiliate of a
Lender to replace that Reference Bank.
|
26.16
|
Agent's
Management Time
|
Any
amount
payable to an Agent under Clause 17.3 (Indemnity
to the Facility Agent), Clause 19
(Costs and expenses) and Clause 26.10
(Lenders' indemnity to the Agent) shall include the cost of utilising
the Agent's management time or other resources and will be calculated on the
basis of such reasonable daily or hourly rates as the Agent may notify to the
Borrower and the Lenders, and is in addition to any fee paid or payable to
the
Agent under Clause 14 (Fees).
|
26.17
|
Deduction
from amounts payable by the
Agents
|
If
any
Party owes an amount to an Agent under the Finance Documents the Agent may,
after giving notice to that Party, deduct an amount not exceeding that amount
from any payment to that Party which the Agent would otherwise be obliged to
make under the Finance Documents and apply the amount deducted in or towards
satisfaction of the amount owed. For the purposes of the Finance
Documents that Party shall be regarded as having received any amount so
deducted.
|
27.
|
CONDUCT
OF BUSINESS BY THE FINANCE
PARTIES
|
No
provision of this Agreement will:
|
(a)
|
interfere
with the right of any Finance Party to arrange its affairs (tax or
otherwise) in whatever manner it thinks
fit;
|
|
(b)
|
oblige
any Finance Party to investigate or claim any credit, relief, remission
or
repayment available to it or the extent, order and manner of any
claim;
or
|
|
(c)
|
oblige
any Finance Party to disclose any information relating to its affairs
(tax
or otherwise) or any computations in respect of
Tax.
|
-
57
-
|
28.
|
SHARING
AMONG THE FINANCE PARTIES
|
|
28.1
|
Payments
to Finance Parties
|
If
a
Finance Party (a "Recovering Finance Party") receives or
recovers any amount from the Borrower other than in accordance with Clause
29 (Payment mechanics) and applies that
amount to a payment due under the Finance Documents then:
|
(a)
|
the
Recovering Finance Party shall, within three Business Days, notify
details
of the receipt or recovery, to the Facility
Agent;
|
|
(b)
|
the
Facility Agent shall determine whether the receipt or recovery is
in
excess of the amount the Recovering Finance Party would have been
paid had
the receipt or recovery been received or made by the Facility Agent
and
distributed in accordance with Clause 29
(Payment mechanics), without taking account of any Tax which
would be imposed on that Facility Agent in relation to the receipt,
recovery or distribution; and
|
|
(c)
|
the
Recovering Finance Party shall, within three Business Days of demand
by
the Facility Agent, pay to the Facility Agent an amount (the
"Sharing Payment") equal to such receipt or recovery less
any amount which the Facility Agent determines may be retained by
the
Recovering Finance Party as its share of any payment to be made,
in
accordance with Clause 29.5 (Partial
payments).
|
|
28.2
|
Redistribution
of payments
|
The
Facility Agent shall treat the Sharing Payment as if it had been paid by the
Borrower and distribute it between the Finance Parties (other than the
Recovering Finance Party) in accordance with Clause 29.5 (Partial payments).
|
28.3
|
Recovering
Finance Party's rights
|
|
(a)
|
On
a
distribution by the Facility Agent under Clause 28.2 (Redistribution of payments), the
Recovering Finance Party will be subrogated to the rights of the
Finance
Parties which have shared in the
redistribution.
|
|
(b)
|
If
and to the extent that the Recovering Finance Party is not able to
rely on
its rights under paragraph (a) above, the Borrower shall be liable
to the
Recovering Finance Party for a debt equal to the Sharing Payment
which is
immediately due and payable.
|
|
28.4
|
Reversal
of redistribution
|
If
any
part of the Sharing Payment received or recovered by a Recovering Finance Party
becomes repayable and is repaid by that Recovering Finance Party,
then:
|
(a)
|
each
Finance Party which has received a share of the relevant Sharing
Payment
pursuant to Clause 28.2 (Redistribution
of payments) shall, upon request of the Facility Agent, pay to the
Facility Agent for account of that Recovering Finance Party an amount
equal to the appropriate part of its share of the Sharing
Payment (together with an amount as is necessary to reimburse
|
-
58
-
that
Recovering Finance Party for its proportion of any interest on the Sharing
Payment which that Recovering Finance Party is required to pay);
and
|
(b)
|
that
Recovering Finance Party's rights of subrogation in respect of any
reimbursement shall be cancelled and the Borrower will be liable
to the
reimbursing Finance Party for the amount so
reimbursed.
|
|
28.5
|
Exceptions
|
|
(a)
|
This
Clause 28 shall not apply to the extent that
the Recovering Finance Party would not, after making any payment
pursuant
to this Clause, have a valid and enforceable claim against the
Borrower.
|
|
(b)
|
A
Recovering Finance Party is not obliged to share with any other Finance
Party any amount which the Recovering Finance Party has received
or
recovered as a result of taking legal or arbitration proceedings,
if:
|
|
(i)
|
it
notified that other Finance Party of the legal or arbitration proceedings;
and
|
|
(ii)
|
that
other Finance Party had an opportunity to participate in those legal
or
arbitration proceedings but did not do so as soon as reasonably
practicable having received notice and did not take separate legal
or
arbitration proceedings.
|
-
59
-
SECTION
10
ADMINISTRATION
|
29.
|
PAYMENT
MECHANICS
|
|
29.1
|
Payments
to the Agents
|
|
(a)
|
For
the purposes of this Clause 29, a reference
to the "Relevant Agent" means:
|
|
(i)
|
in
relation to payments under the Swingline Facility, the Swingline
Agent;
and
|
|
(ii)
|
for
all other payments, the Facility
Agent.
|
|
(b)
|
On
each date on which the Borrower or a Lender is required to make a
payment
under a Finance Document, the Borrower or Lender shall make the same
available to the Relevant Agent (unless a contrary indication appears
in a
Finance Document) for value on the due date at the time and in such
funds
specified by the Relevant Agent as being customary at the time for
settlement of transactions in the relevant currency in the place
of
payment.
|
|
(c)
|
Payment
shall be made to such account in the principal financial centre of
the
country of that currency with such bank as the Relevant Agent
specifies.
|
|
29.2
|
Distributions
by the Agent
|
Each
payment received by an Agent under the Finance Documents for another Party
shall, subject to Clause 29.3 (Distributions to
the Borrower), Clause 29.4 (Clawback)
and Clause 26.17 (Deduction from amounts
payable by the Agent) be made available by such Agent as soon as
practicable after receipt to the Party entitled to receive payment in accordance
with this Agreement (in the case of a Lender, for the account of its Facility
Office), to such account as that Party may notify to the Facility Agent by
not
less than five Business Days' notice with a bank in the principal financial
centre of the country of that currency.
|
29.3
|
Distributions
to the Borrower
|
An
Agent
may (with the consent of the Borrower or in accordance with Clause 30 (Set-off)) apply any amount received by it
for the Borrower in or towards payment (on the date and in the currency and
funds of receipt) of any amount due from the Borrower under the Finance
Documents or in or towards purchase of any amount of any currency to be so
applied.
|
29.4
|
Clawback
|
|
(a)
|
Where
a sum is to be paid to an Agent under the Finance Documents for another
Party, such Agent is not obliged to pay that sum to that other Party
(or
to enter into or perform any related exchange contract) until it
has been
able to establish to its satisfaction that it has actually received
that
sum.
|
|
(b)
|
If
an Agent pays an amount to another Party and it proves to be the
case that
such Agent had not actually received that amount, then the Party
to whom
that
|
-
60
-
amount
(or
the proceeds of any related exchange contract) was paid by such Agent shall
on
demand refund the same to such Agent together with interest on that amount
from
the date of payment to the date of receipt by such Agent, calculated by such
Agent to reflect its cost of funds.
|
29.5
|
Partial
payments
|
|
(a)
|
If
an Agent receives a payment that is insufficient to discharge all
the
amounts then due and payable by the Borrower under the Finance Documents,
such Agent shall apply that payment towards the obligations of the
Borrower under the Finance Documents in the following
order:
|
|
(i)
|
first,
in or towards payment pro rata of any unpaid fees, costs and expenses
of
the Agents and the Arranger under the Finance
Documents;
|
|
(ii)
|
secondly,
in or towards payment pro rata of any accrued interest, fee or commission
due but unpaid under this
Agreement;
|
|
(iii)
|
thirdly,
in or towards payment pro rata of any principal due but unpaid under
this
Agreement; and
|
|
(iv)
|
fourthly,
in or towards payment pro rata of any other sum due but unpaid under
the
Finance Documents.
|
|
(b)
|
The
Facility Agent shall, if so directed by the Majority Lenders, vary
the
order set out in paragraphs (a)(ii) to (iv)
above.
|
|
(c)
|
Paragraphs
(a) and (b) above will override any appropriation made by the
Borrower.
|
|
29.6
|
No
set-off by the Borrower
|
All
payments to be made by the Borrower under the Finance Documents shall be
calculated and be made without (and free and clear of any deduction for) set-off
or counterclaim.
|
29.7
|
Business
Days
|
|
(a)
|
Any
payment which is due to be made on a day that is not a Business Day
shall
be made on the next Business Day in the same calendar month (if there
is
one) or the preceding Business Day (if there is
not).
|
|
(b)
|
During
any extension of the due date for payment of any principal or Unpaid
Sum
under this Agreement interest is payable on the principal or Unpaid
Sum at
the rate payable on the original due
date.
|
|
29.8
|
Currency
of account
|
|
(a)
|
Subject
to paragraphs (b) and (c) below, dollars is the currency of account
and
payment for any sum from the Borrower under any Finance
Document.
|
|
(b)
|
Each
payment in respect of costs, expenses or Taxes shall be made in the
currency in which the costs, expenses or Taxes are
incurred.
|
-
61
-
|
(c)
|
Any
amount expressed to be payable in a currency other than dollars shall
be
paid in that other currency.
|
|
29.9
|
Change
of currency
|
|
(a)
|
Unless
otherwise prohibited by law, if more than one currency or currency
unit
are at the same time recognised by the central bank of any country
as the
lawful currency of that country,
then:
|
|
(i)
|
any
reference in the Finance Documents to, and any obligations arising
under
the Finance Documents in, the currency of that country shall be translated
into, or paid in, the currency or currency unit of that country designated
by the Facility Agent (after consultation with the Borrower);
and
|
|
(ii)
|
any
translation from one currency or currency unit to another shall be
at the
official rate of exchange recognised by the central bank for the
conversion of that currency or currency unit into the other, rounded
up or
down by the Facility Agent (acting
reasonably).
|
|
(b)
|
If
a
change in any currency of a country occurs, this Agreement will,
to the
extent the Facility Agent (acting reasonably and after consultation
with
the Borrower) specifies to be necessary, be amended to comply with
any
generally accepted conventions and market practice in the Relevant
Interbank Market and otherwise to reflect the change in
currency.
|
|
29.10
|
Disruption
to Payment Systems etc.
|
If
either
the Facility Agent determines (in its discretion) that a Disruption Event has
occurred or the Facility Agent is notified by the Borrower that a Disruption
Event has occurred:
|
(a)
|
the
Facility Agent may, and shall if requested to do so by the Borrower,
consult with the Borrower with a view to agreeing with the Borrower
such
changes to the operation or administration of the Facility as the
Facility
Agent may deem necessary in the
circumstances;
|
|
(b)
|
the
Facility Agent shall not be obliged to consult with the Borrower
in
relation to any changes mentioned in paragraph (a) if, in its reasonable
opinion, it is not practicable to do so in the circumstances and,
in any
event, shall have no obligation to agree to such
changes;
|
|
(c)
|
the
Facility Agent may consult with the Finance Parties in relation to
any
changes mentioned in paragraph (a) but shall not be obliged to do
so if,
in its opinion, it is not practicable to do so in the
circumstances;
|
|
(d)
|
any
such changes agreed upon by the Facility Agent and the Borrower shall
(whether or not it is finally determined that a Disruption Event
has
occurred) be binding upon the Parties as an amendment to (or, as
the case
may be,
|
-
62
-
waiver
of)
the terms of the Finance Documents notwithstanding the provisions of Clause
35 (Amendments and Waivers);
|
(e)
|
the
Facility Agent shall not be liable for any damages, costs or losses
whatsoever (including, without limitation for negligence, gross
negligence or any other category of liability whatsoever but not
including
any claim based on the fraud of the Facility Agent) arising as a
result of
its taking, or failing to take, any actions pursuant to or in connection
with this Clause 29.10;
and
|
|
(f)
|
the
Facility Agent shall notify the Finance Parties of all changes agreed
pursuant to paragraph (d) above.
|
|
30.
|
SET-OFF
|
A
Finance
Party may set off any matured obligation due from the Borrower under the Finance
Documents (to the extent beneficially owned by that Finance Party) against
any
matured obligation owed by that Finance Party to the Borrower, regardless of
the
place of payment, booking branch or currency of either obligation. If
the obligations are in different currencies, the Finance Party may convert
either obligation at a market rate of exchange in its usual course of business
for the purpose of the set-off.
|
31.
|
NOTICES
|
|
31.1
|
Communications
in writing
|
Any
communication to be made under or in connection with the Finance Documents
shall
be made in writing and, unless otherwise stated, may be made by fax or
letter.
|
31.2
|
Addresses
|
The
address and fax number (and the department or officer, if any, for whose
attention the communication is to be made) of each Party for any communication
or document to be made or delivered under or in connection with the Finance
Documents is:
|
(a)
|
in
the case of the Borrower, that identified with its name
below;
|
|
(b)
|
in
the case of each Lender, that notified in writing to each Agent on
or
prior to the date on which it becomes a Party;
and
|
|
(c)
|
in
the case of an Agent, that identified with its name
below,
|
or
any
substitute address or fax number or department or officer as the Party may
notify to the Facility Agent (or the Facility Agent may notify to the other
Parties, if a change is made by the Facility Agent) by not less than five
Business Days' notice.
|
31.3
|
Delivery
|
|
(a)
|
Any
communication or document made or delivered by one person to another
under
or in connection with the Finance Documents will only be
effective:
|
|
(i)
|
if
by way of fax, when received in legible form;
or
|
-
63
-
|
(ii)
|
if
by way of letter, when it has been left at the relevant address or
five
Business Days after being deposited in the post postage prepaid in
an
envelope addressed to it at that
address,
|
and,
if a
particular department or officer is specified as part of its address details
provided under Clause 31.2 (Addresses), if
addressed to that department or officer.
|
(b)
|
Any
communication or document to be made or delivered to an Agent will
be
effective only when actually received by such Agent and then only
if it is
expressly marked for the attention of the department or officer identified
with such Agent's signature below (or any substitute department or
officer
as such Agent shall specify for this
purpose).
|
|
(c)
|
All
notices from or to the Borrower shall be sent through the
Agent.
|
|
31.4
|
Notification
of address and fax number
|
Promptly
upon receipt of notification of an address and fax number or change of address
or fax number pursuant to Clause 31.2
(Addresses) or changing its own address or fax number, the Facility
Agent shall notify the other Parties.
|
31.5
|
Electronic
communication
|
|
(a)
|
Any
communication to be made between an Agent and a Lender under or in
connection with the Finance Documents may be made by electronic mail
or
other electronic means, if such Agent and the relevant
Lender:
|
|
(i)
|
agree
that, unless and until notified to the contrary, this is to be an
accepted
form of communication;
|
|
(ii)
|
notify
each other in writing of their electronic mail address and/or any
other
information required to enable the sending and receipt of information
by
that means; and
|
|
(iii)
|
notify
each other of any change to their address or any other such information
supplied by them.
|
|
(b)
|
Any
electronic communication made between an Agent and a Lender will
be
effective only when actually received in readable form and in the
case of
any electronic communication made by a Lender to an Agent only if
it is
addressed in such a manner as such Agent shall specify for this
purpose.
|
|
31.6
|
English
language
|
|
(a)
|
Any
notice given under or in connection with any Finance Document must
be in
English.
|
|
(b)
|
All
other documents provided under or in connection with any Finance
Document
must be:
|
|
(i)
|
in
English; or
|
-
64
-
|
(ii)
|
if
not in English, and if so required by the Facility Agent, accompanied
by a
certified English translation and, in this case, the English translation
will prevail unless the document is a constitutional, statutory or
other
official document.
|
|
32.
|
CALCULATIONS
AND CERTIFICATES
|
|
32.1
|
Accounts
|
In
any
litigation or arbitration proceedings arising out of or in connection with
a
Finance Document, the entries made in the accounts maintained by a Finance
Party
are prima facie evidence of the matters to which they
relate.
|
32.2
|
Certificates
and Determinations
|
|
(a)
|
Any
certification or determination by a Finance Party of a rate or amount
under any Finance Document is, in the absence of manifest error,
prima
facie evidence of the matters to which it
relates.
|
|
(b)
|
Certificates
granted on behalf of the Borrower shall be given without personal
liability on part of the officer signing
them.
|
|
32.3
|
Day
count convention
|
Any
interest, commission or fee accruing under a Finance Document will accrue from
day to day and is calculated on the basis of the actual number of days elapsed
and a year of 360 days or, in any case where the practice in the Relevant
Interbank Market differs, in accordance with that market practice.
|
33.
|
PARTIAL
INVALIDITY
|
If,
at any
time, any provision of the Finance Documents is or becomes illegal, invalid
or
unenforceable in any respect under any law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions nor the
legality, validity or enforceability of such provision under the law of any
other jurisdiction will in any way be affected or impaired.
|
34.
|
REMEDIES
AND WAIVERS
|
No
failure
to exercise, nor any delay in exercising, on the part of any Finance Party,
any
right or remedy under the Finance Documents shall operate as a waiver, nor
shall
any single or partial exercise of any right or remedy prevent any further or
other exercise or the exercise of any other right or remedy. The
rights and remedies provided in this Agreement are cumulative and not exclusive
of any rights or remedies provided by law.
|
35.
|
AMENDMENTS
AND WAIVERS
|
|
35.1
|
Required
consents
|
|
(a)
|
Subject
to Clause 35.2 (Exceptions) any term
of the Finance Documents may be amended or waived only with the consent
of
the Majority Lenders and the Borrower and any such amendment or waiver
will be binding on all Parties.
|
-
65
-
|
(b)
|
The
Facility Agent may effect, on behalf of any Finance Party, any amendment
or waiver permitted by this Clause.
|
|
35.2
|
Exceptions
|
|
(a)
|
An
amendment or waiver that has the effect of changing or which relates
to:
|
|
(i)
|
the
definition of "Majority Lenders" in Clause 1.1
(Definitions);
|
|
(ii)
|
an
extension to the date of payment of any amount under the Finance
Documents;
|
|
(iii)
|
a
reduction in the Margin or a reduction in the amount of any payment
of
principal, interest, fees or commission
payable;
|
|
(iv)
|
an
increase in or an extension of any
Commitment;
|
|
(v)
|
a
change to the Borrower;
|
|
(vi)
|
any
provision which expressly requires the consent of all the
Lenders;
|
|
(vii)
|
shall
not
be made without the prior consent of all the Lenders.
|
(b)
|
An
amendment or waiver which relates to the rights or obligations of
any
Agent or the Arranger may not be effected without the consent of
such
Agent or the Arranger as the case may
be.
|
|
36.
|
COUNTERPARTS
|
Each
Finance Document may be executed in any number of counterparts, and this has
the
same effect as if the signatures on the counterparts were on a single copy
of
the Finance Document.
-
66
-
SECTION
11
GOVERNING
LAW AND ENFORCEMENT
|
37.
|
GOVERNING
LAW
|
This
Agreement is governed by English law.
|
38.
|
ENFORCEMENT
|
|
38.1
|
Jurisdiction
|
|
(a)
|
The
courts of England have exclusive jurisdiction to settle any dispute
arising out of or in connection with this Agreement (including a
dispute
regarding the existence, validity or termination of this Agreement)
(a
"Dispute").
|
|
(b)
|
The
Parties agree that the courts of England are the most appropriate
and
convenient courts to settle Disputes and accordingly no Party will
argue
to the contrary.
|
|
(c)
|
This
Clause 38.1 is for the benefit of the Finance
Parties only. As a result, no Finance Party shall be prevented
from taking proceedings relating to a Dispute in any other courts
with
jurisdiction. To the extent allowed by law, the Finance Parties
may take concurrent proceedings in any number of
jurisdictions.
|
This
Agreement has been entered into on the date stated at the beginning of this
Agreement.
-
67
-
SCHEDULE
1
THE
LENDERS
Part
I
The
Original Lenders
|
Name
of Original Lender
|
Commitment
|
|
Citibank,
N.A., London Branch
|
$3,750,000,000
|
|
Deutsche
Bank AG, London Branch
|
$3,750,000,000
|
|
HSBC
Bank plc
|
$3,750,000,000
|
|
JPMorgan
Chase Bank, N.A.
|
$3,750,000,000
|
Part
II
The
Swingline Lenders
|
Name
of Swingline Lender
|
Swingline
Commitment
|
|
Citibank,
N.A.,
|
$1,250,000,000
|
|
Deutsche
Bank AG, New York Branch
|
$1,250,000,000
|
|
HSBC
Bank plc
|
$1,250,000,000
|
|
JPMorgan
Chase Bank, N.A.
|
$1,250,000,000
|
-
68
-
SCHEDULE
2
CONDITIONS
PRECEDENT TO INITIAL UTILISATION
|
1.
|
The
Borrower
|
|
(a)
|
A
copy of the constitutional documents of the
Borrower.
|
|
(b)
|
A
copy of a resolution of the board of directors of the
Borrower:
|
|
(i)
|
resolving
to approve the incurrence of debt to finance the Acquisition and
the terms
of such debt financing as summarised in the Commitment Letter and
the term
sheet appended thereto, and resolving to authorise a specified person
or
persons on behalf of the Borrower to execute the same;
and
|
|
(ii)
|
resolving
to authorise a specified person or persons on behalf of the Borrower
to
take any and all actions, to execute and deliver any and all documents,
agreements and instruments and to take any and all steps deemed by
such
authorised person to be necessary or desirable to carry out the purpose
and intent of, inter alia, the resolutions referred to in (i)
above and ratifying all actions taken by a specified person or persons
in
furtherance thereof.
|
|
(c)
|
A
specimen of the signature of each person authorised to sign and actually
signing any Finance Documents.
|
|
(d)
|
A
certificate of the Borrower (signed by an authorised signatory) confirming
that borrowing the Total Commitments would not cause any borrowing
limit
binding on the Borrower to be
exceeded.
|
|
(e)
|
A
certificate of an authorised signatory of the Borrower certifying
that
each copy document relating to it specified in this Schedule 2 is correct, complete and in full
force and effect as at a date no earlier than the date of this
Agreement.
|
|
2.
|
Legal
opinions
|
A
legal
opinion of Xxxxxxxx Chance LLP, legal advisers to the Arranger and the Agents
in
England, substantially in the form distributed to the Original Lenders prior
to
signing this Agreement.
|
3.
|
Other
documents and evidence
|
|
(a)
|
The
Original Financial Statements.
|
|
(b)
|
-
69
-
|
(c)
|
The
executed Merger Agreement and confirmation from the Borrower that
all
conditions to the consummation of the Merger Agreement and the Offer
(as
therein defined) have been satisfied or waived by
it.
|
-
70
-
SCHEDULE
3
UTILISATION
REQUESTS
Part
I
Utilisation
Request - Revolving Facility Loans
From:
AstraZeneca PLC
To: HSBC
Bank plc
Dated:
Dear
Sirs
AstraZeneca
PLC – $15,000,000,000 Facility Agreement
dated
1 May 2007 as amended on [ ] May 2007 (the
"Agreement")
|
1.
|
We
refer to the Agreement. This is a Utilisation
Request. Terms defined in the Agreement have the same meaning
in this Utilisation Request unless given a different meaning in this
Utilisation Request.
|
|
2.
|
We
wish to borrow a Revolving Facility Loan on the following
terms:
|
|
Proposed
Utilisation Date:
|
[ ]
(or, if that is not a Business Day, the next Business
Day)
|
|
Currency
of Revolving Facility Loan:
|
$[ ]
|
|
Amount:
|
[ ]
or, if less, the Available Facility
|
|
Interest
Period:
|
[ ]
|
|
3.
|
We
confirm that each condition specified in Clause 4.2 (Further conditions precedent) is
satisfied on the date of this Utilisation
Request.
|
|
4.
|
The
proceeds of this Revolving Facility Loan should be credited to
[account].
|
|
5.
|
This
Utilisation Request is irrevocable.
|
Yours
faithfully
…………………………………
authorised
signatory for
AstraZeneca
PLC
-
71
-
Part
II
Utilisation
Request - Swingline Loans
From:
AstraZeneca PLC
To: HSBC
Bank USA, N.A.
Copy
to: HSBC Bank
plc
Dated:
Dear
Sirs
AstraZeneca
PLC – $15,000,000,000 Facility Agreement
dated
1 May 2007 as amended on [ ] May 2007 (the
"Agreement")
|
1.
|
We
refer to the Agreement. This is a Utilisation
Request. Terms defined in the Agreement have the same meaning
in this Utilisation Request unless given a different meaning in this
Utilisation Request.
|
|
2.
|
We
wish to borrow a Swingline Loan on the following
terms:
|
|
Proposed
Utilisation Date:
|
[ ]
(or, if that is not a New York Business Day, the next New York Business
Day)
|
|
Facility
to be utilised:
|
Swingline
Facility
|
|
Amount:
|
$[ ]
or, if less, the Available Facility
|
|
Interest
Period:
|
[ ]
|
|
3.
|
We
confirm that each condition specified in Clause 7.3(b) (Swingline Lenders'
participation) is satisfied on the date of this Utilisation
Request.
|
|
4.
|
The
proceeds of this Swingline Loan should be credited to
[account].
|
|
5.
|
This
Utilisation Request is irrevocable.
|
Yours
faithfully
…………………………………
authorised
signatory for
AstraZeneca
PLC
-
72
-
SCHEDULE
4
MANDATORY
COST FORMULAE
|
1.
|
The
Mandatory Cost is an addition to the interest rate to compensate
Lenders
for the cost of compliance with (a) the requirements of the Financial
Services Authority (or any other authority which replaces all or
any of
its functions) or (b) the requirements of the European Central
Bank.
|
|
2.
|
On
the first day of each Interest Period (or as soon as possible thereafter)
the Facility Agent shall calculate, as a percentage rate, a rate
(the
"Additional Cost Rate") for each Lender, in accordance
with the paragraphs set out below. The Mandatory Cost will be
calculated by the Facility Agent as a weighted average of the Lenders'
Additional Cost Rates (weighted in proportion to the percentage
participation of each Lender in the relevant Loan) and will be expressed
as a percentage rate per annum.
|
|
3.
|
The
Additional Cost Rate for any Lender lending from a Facility Office
in a
Participating Member State will be the percentage notified by that
Lender
to the Facility Agent. This percentage will be certified by
that Lender in its notice to the Facility Agent to be its reasonable
determination of the cost (expressed as a percentage of that Lender's
participation in all Loans made from that Facility Office) of complying
with the minimum reserve requirements of the European Central Bank
in
respect of loans made from that Facility
Office.
|
|
4.
|
The
Additional Cost Rate for any Lender lending from a Facility Office
in the
United Kingdom will be calculated by the Facility Agent as
follows:
|
E
x 0.01 per cent. per annum.
300
Where:
|
|
E
|
is
designed to compensate Lenders for amounts payable under the Fees
Rules
and is calculated by the Facility Agent as being the average of the
most
recent rates of charge supplied by the Reference Banks to the Facility
Agent pursuant to paragraph 7 below and expressed in pounds per
£1,000,000.
|
|
5.
|
For
the purposes of this Schedule:
|
|
(a)
|
"Fees
Rules" means the rules on periodic fees contained in the FSA
Supervision Manual or such other law or regulation as may be in force
from
time to time in respect of the payment of fees for the acceptance
of
deposits;
|
|
(b)
|
"Fee
Tariffs" means the fee tariffs specified in the Fees Rules under
the activity group A.1 Deposit acceptors (ignoring any minimum fee
or zero
rated fee required pursuant to the Fees Rules but taking into account
any
applicable discount rate); and
|
-
73
-
|
(c)
|
"Tariff
Base" has the meaning given to it in, and will be calculated
in
accordance with, the Fees Rules.
|
|
6.
|
If
requested by the Facility Agent, each Reference Bank shall, as soon
as
practicable after publication by the Financial Services Authority,
supply
to the Facility Agent, the rate of charge payable by that Reference
Bank
to the Financial Services Authority pursuant to the Fees Rules in
respect
of the relevant financial year of the Financial Services Authority
(calculated for this purpose by that Reference Bank as being the
average
of the Fee Tariffs applicable to that Reference Bank for that financial
year) and expressed in pounds per £1,000,000 of the Tariff Base of that
Reference Bank.
|
|
7.
|
Each
Lender shall supply any information required by the Facility Agent
for the
purpose of calculating its Additional Cost Rate. In particular,
but without limitation, each Lender shall supply the following information
on or prior to the date on which it becomes a
Lender:
|
|
(a)
|
the
jurisdiction of its Facility Office;
and
|
|
(b)
|
any
other information that the Facility Agent may reasonably require
for such
purpose.
|
Each
Lender shall promptly notify the Facility Agent of any change to the information
provided by it pursuant to this paragraph.
|
8.
|
The
Facility Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates
any
Lender and shall be entitled to assume that the information provided
by
any Lender or Reference Bank pursuant to paragraphs 3, 7 and 8 above
is
true and correct in all respects.
|
|
9.
|
The
Facility Agent shall distribute the additional amounts received as
a
result of the Mandatory Cost to the Lenders on the basis of the Additional
Cost Rate for each Lender based on the information provided by each
Lender
and each Reference Bank pursuant to paragraphs 3, 7 and 8
above.
|
|
10.
|
Any
determination by the Facility Agent pursuant to this Schedule in
relation
to a formula, the Mandatory Cost, an Additional Cost Rate or any
amount
payable to a Lender shall, in the absence of manifest error, be conclusive
and binding on all Parties.
|
|
11.
|
The
Facility Agent may from time to time, after consultation with the
Borrower
and the Lenders, determine and notify to all Parties any amendments
which
are required to be made to this Schedule in order to comply with
any
change in law, regulation or any requirements from time to time imposed
by
the Financial Services Authority or the European Central Bank (or,
in any
case, any other authority which replaces all or any of its functions)
and
any such determination shall, in the absence of manifest error, be
conclusive and binding on all
Parties.
|
-
74
-
SCHEDULE
5
FORM
OF TRANSFER CERTIFICATE
To: HSBC
Bank plc as Facility Agent
From: [The
Existing Lender] (the "Existing Lender") and [The New
Lender] (the "New Lender")
Dated:
AstraZeneca
PLC – $15,000,000,000 Facility Agreement
dated
1 May 2007 as amended on [ ] May 2007 (the
"Agreement")
|
1.
|
We
refer to the Agreement. This is a Transfer
Certificate. Terms defined in the Agreement have the same
meaning in this Transfer Certificate unless given a different meaning
in
this Transfer Certificate.
|
|
2.
|
We
refer to Clause 24.5 (Procedure for
transfer):
|
|
(a)
|
The
Existing Lender and the New Lender agree to the Existing Lender
transferring to the New Lender by novation all or part of the Existing
Lender's Commitment, rights and obligations referred to in the Schedule
in
accordance with Clause 24.5 (Procedure
for transfer).
|
|
(b)
|
The
proposed Transfer Date is
[ ].
|
|
(c)
|
The
Facility Office and address, fax number and attention details for
notices
of the New Lender for the purposes of Clause 31.2 (Addresses) are set out in the
Schedule.
|
|
3.
|
The
New Lender expressly acknowledges the limitations on the Existing
Lender's
obligations set out in paragraph (c) of Clause 24.4 (Limitation of responsibility of
Existing Lenders).
|
|
4.
|
[The
New Lender confirms that the person beneficially entitled to interest
payable to that Lender in respect of an advance under a Finance Document
is either:
|
|
(a)
|
a
company resident in the United Kingdom for United Kingdom tax purposes;
or
|
|
(b)
|
a
partnership each member of which
is:
|
|
(i)
|
a
company so resident in the United Kingdom;
or
|
|
(ii)
|
a
company not so resident in the United Kingdom which carries on a
trade in
the United Kingdom through a permanent establishment and which brings
into
account in computing its chargeable profits (for the purposes of
section
11(2) of the Taxes Act) the whole of any share of interest payable
in
respect of that advance that falls to it by reason of sections 114
and 115
of the Taxes Act; or
|
-
75
-
|
(c)
|
a
company not so resident in the United Kingdom which carries on a
trade in
the United Kingdom through a permanent establishment and which brings
into
account interest payable in respect of that advance in computing
the
chargeable profits (for the purposes of section 11(2) of the Taxes
Act) of
that company.] 1
|
|
[4/5].
|
This
Transfer Certificate may be executed in any number of counterparts
and
this has the same effect as if the signatures on the counterparts
were on
a single copy of this Transfer
Certificate.
|
|
[5/6].
|
This
Transfer Certificate is governed by English
law.
|
THE
SCHEDULE
Commitment/rights
and obligations to be transferred
[insert
relevant details]
[Facility
Office address, fax number and attention details for notices and account details
for payments,]
|
[Existing
Lender]
|
[New
Lender]
|
|
By:
|
By:
|
|
This
Transfer Certificate is accepted by the Facility Agent and the Transfer
Date is confirmed as
[ ].
|
|
|
[Facility
Agent]
|
|
By:
|
1
|
Include
if New Lender comes within paragraph (i)(B) of the definition of
Qualifying Lender in Clause 1.1
(Definitions).
|
-
76
-
SCHEDULE
6
TIMETABLES
Revolving
Facility Loans
|
Revolving
Facility Loans in Dollars
|
||
|
U-2
8.30am
(12.00pm for the initial Utilisation Request only)
|
||
|
Facility
Agent notifies the Lenders of the Loan in accordance with Clause
5.4 (Lenders'
participation)
|
U-2
10.00am
(1.30pm for the initial Utilisation Request only)
|
|
|
LIBOR
is fixed
|
Quotation
Day as of 11.00am
|
Swingline
Loans
|
Swingline
Loans in Dollars
|
||
|
Delivery
of a duly completed Utilisation Request (Clause 7.1 (Delivery of a Utilisation Request
for
Swingline Loans))
|
U
11.00am
New York time
|
|
|
Swingline
Agent notifies each Swingline Lender of the amount of its participation
in
the Swingline Loan under Clause 7.3
(Swingline Lenders' participation)
|
U
1.00pm
New York time
|
|
|
Swingline
Agent determines Federal Funds Rate under Clause 8.3 (Interest)
|
U
1.00pm
New York time
|
|
"U"
= date
of utilisation or, if applicable, in the case of a Loan that has already been
borrowed, the first day of the relevant Interest Period for that
Loan
"U
- X" =
Business Days prior to date of utilisation
-
77
-
SIGNATURES
THE
BORROWER
ASTRAZENECA
PLC
By:
/s/
Xxxxxxxxxxx Xxxxx
Address: 00
Xxxxxxxx Xxxx
Xxxxxx
X0X 0XX
THE
ARRANGER
CITIGROUP
GLOBAL MARKETS LIMITED
By:
/s/
Xxxxxxx Xxxxxx
Address: Citigroup
Centre
00
Xxxxxx
Xxxxxx
Xxxxxx
X00
0XX
DEUTSCHE
BANK AG, LONDON BRANCH
By:
/s/
Xxxxxxx Xxxxxxx-Xxxxx
Address: Winchester
house
0
Xxxxx
Xxxxxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
HSBC
BANK
PLC
By:
/s/
Xxxx Xxxxx
Address: 0
Xxxxxx Xxxxxx
Xxxxxx
X00
0XX
JPMORGAN
CAZENOVE LIMITED
By: /s/
[signature illegible]
Address:
000
Xxxxxx Xxxx
Xxxxxx
XX0X 0XX
THE
FACILITY AGENT
HSBC
BANK
PLC
By:
/s/
Xxxx Xxxxx
Address: 0
Xxxxxx Xxxxxx
Xxxxxx
X00
0XX
Fax:
x00
0(00) 0000 0000
THE
SWINGLINE AGENT
HSBC
BANK
USA, NATIONAL ASSOCIATION
By:
/s/
Xxxx Xxxxx
Address: 0
XXXX Xxxxxx
00xx
Xxxxx
Xxxxxxx,
XX 00000
Fax:
00 0-000-000-0000
and
00-0-000-000-0000
Attention: Xxxxxx
Xxxxxx / Xxxx X Xxxxxxx
THE
ORIGINAL LENDERS
CITIBANK,
N.A., AS LENDER AND SWINGLINE LENDER
By:
/s/
Xxxxxxx Xxxxxx
Address: Citigroup
Centre
00
Xxxxxx
Xxxxxx
Xxxxxx
X00
0XX
DEUTSCHE
BANK AG, LONDON BRANCH, AS LENDER
By:
/s/
Xxxxxxx Xxxxxxx-Xxxxx
Address: Xxxxxxxxxx
Xxxxx
0
Xxxxx
Xxxxxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
DEUTSCHE
BANK AG, NEW YORK BRANCH, AS SWINGLINE LENDER
By:
/s/
Xxxxxxx Xxxxxxx-Xxxxx
Address: Floor
1, 00 Xxxxxx Xxxxxx
Xxxxxx
Xxxx
Xxx
Xxxxxx, XXX.
HSBC
BANK
PLC, AS LENDER AND SWINGLINE LENDER
By:
/s/
Xxxx Xxxxx
Address: 0
Xxxxxx Xxxxxx
Xxxxxx
X00
0XX
JPMORGAN
CHASE BANK, N.A., AS LENDER AND SWINGLINE LENDER
By:
/s/
Xxxx Xxxxxx
Address: 000
Xxxxxx Xxxx
Xxxxxx
XX0X
0XX
