Exhibit (b)
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XXXXXXXX
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LIMITED LIABILITY PARTNERSHIP |
CHANCE |
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EXECUTION VERSION
$15,000,000,000
dated 1 May 2007
for
ASTRAZENECA PLC
as Borrower
arranged by
CITIGROUP GLOBAL MARKETS LIMITED
DEUTSCHE BANK AG, LONDON BRANCH
and
HSBC BANK PLC
with
HSBC BANK PLC
acting as Agent
CONTENTS
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Clause |
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1. Definitions And Interpretation |
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1 |
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2. The Facility |
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11 |
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3. Purpose |
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11 |
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4. Conditions Of Utilisation |
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11 |
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5. Utilisation — Loans |
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14 |
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6. Repayment |
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15 |
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7. Prepayment And Cancellation |
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15 |
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8. Interest |
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19 |
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9. Interest Periods |
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20 |
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10. Changes To The Calculation Of Interest |
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20 |
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11. Fees |
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22 |
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12. Tax Gross Up And Indemnities |
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23 |
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13. Increased Costs |
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28 |
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14. Other Indemnities |
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29 |
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15. Mitigation By The Lenders |
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30 |
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16. Costs And Expenses |
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30 |
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17. Representations |
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32 |
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18. Information Undertakings |
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34 |
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19. General Undertakings |
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36 |
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20. Events Of Xxxxxxx |
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00 |
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00. Changes To The Lenders |
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42 |
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22. Changes To The Borrower |
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45 |
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23. Role Of The Agent And The Arranger |
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46 |
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24. Conduct Of Business By The Finance Parties |
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51 |
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25. Sharing Among The Finance Parties |
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51 |
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26. Payment Mechanics |
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53 |
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27. Set-Off |
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55 |
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28. Notices |
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56 |
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29. Calculations And Certificates |
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57 |
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30. Partial Invalidity |
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58 |
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31. Remedies And Waivers |
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58 |
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32. Amendments And Waivers |
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58 |
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Clause |
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Page |
33. Counterparts |
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59 |
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34. Governing Law |
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60 |
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35. Enforcement |
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60 |
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SCHEDULE 1 The Original Lenders |
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61 |
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SCHEDULE 2 Conditions Precedent To Initial Utilisation |
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62 |
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SCHEDULE 3 Utilisation Requests |
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64 |
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SCHEDULE 4 Mandatory Cost Formulae |
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65 |
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SCHEDULE 5 Form Of Transfer Certificate |
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67 |
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SCHEDULE 6 Timetables |
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69 |
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THIS AGREEMENT is dated 1 May 2007 and made between:
(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 (whether acting individually or together the
“Arranger”); |
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(3) |
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THE FINANCIAL INSTITUTIONS listed in Schedule 1 (The Original Lenders) as lenders
(the “Original Lenders”); and |
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(4) |
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HSBC BANK PLC as agent of the other Finance Parties (the “Agent”). |
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
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: |
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“Acquisition” means the acquisition by the Borrower (or any of its Subsidiaries) of the
shares of the Target pursuant to the Merger Agreement. |
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“Additional Cost Rate” has the meaning given to it in Schedule 4 (Mandatory Cost formulae). |
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“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. |
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“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 and
including the earlier of (i) the date falling 6 Months after the date of this Agreement, and
(ii) the date on which the Borrower makes a voluntary prepayment of any Loan. |
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“Available Commitment” means a Lender’s Commitment minus: |
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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. |
“Available Facility” means the aggregate for the time being of each Lender’s Available
Commitment.
- 1 -
“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; |
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. |
“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 last day of the Availability Period.
“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
Sub-clauses (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 Schedule 1 (The Original 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, |
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 Agent.
- 2 -
“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 20
(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, |
(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 20 (Events of
Default).
“Facility” means the term loan facility made available under this Agreement as described in
Clause 2 (The Facility).
“Facility Office” means the office or offices notified by a Lender to the Agent in writing
on or before the date it becomes a Lender (or, following that date, by not less than five
Business Days’ written notice) as the office or offices through which it will perform its
obligations under this Agreement.
“Fee Letter” means any letter or letters dated on or about the date of this Agreement
between the Arranger and the Borrower (or the Agent and the Borrower) setting out any of the
fees referred to in Clause 11 (Fees).
“Finance Document” means this Agreement, any Fee Letter and any other document designated as
a “Finance Document” by the Agent and the Borrower.
“Finance Party” means the Agent, the Arranger or a Lender.
- 3 -
“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, |
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.
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“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 Loan, each period determined in accordance with
Clause 9 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in
accordance with Clause 8.3 (Default interest).
“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 21 (Changes to the
Lenders), |
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 Agent at its request quoted by the Reference Banks to leading banks in
the London interbank market, |
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 loan made or to be made under the Facility or the principal amount
outstanding for the time being of that loan.
“Major Default” means with respect to the Borrower only, any circumstances constituting a
Default under any of Clause 20.1 (Non-Payment); Clause 20.2 (Other obligations) insofar as it
relates to a breach of Clauses 3.1 (Purpose), 19.3 (Negative pledge) (including, for the
purposes of this definition only, any Material Subsidiary) or Clause 19.6 (Acquisition
Undertakings); Clause 20.3 (Misrepresentation) insofar as it relates to a breach of any Major
Representation; Clause 20.5 (Insolvency); Clause 20.6 (Insolvency proceedings); Clause 20.7
(Creditors’ process); Clause 20.8 (Unlawfulness) or Clause 20.9 (Repudiation).
“Major Representations” means a representation or warranty with respect to the Borrower only
under any of Clause 17.1 (Status), Clause 17.2 (Binding Obligations), Clause 17.3
(Non-Conflict) in respect of (a) and (b) only and Clause 17.4 (Power and Authority) or
Clause 17.11 (Pari Passu Ranking).
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“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 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. |
“Mandatory Cost” means the percentage rate per annum calculated by the 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.
“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. |
The above rules will only apply to the last Month of any period.
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“Net Proceeds” means the proceeds of (i) any Syndicated Loans, (ii) the issue of the Capital
Markets Debt Instruments, or (iii) the issue of 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, |
to the extent connected with the raising or incurrence of such Financial Indebtedness or
such issuance.
“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 12 (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 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 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 17.1
(Status) to 17.4 (Power and Authority) (inclusive) and Clause 17.11 (Pari passu ranking).
“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 Agent may specify another
page or service displaying the appropriate rate after consultation with the Borrower and the
Lenders.
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“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 9 (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) |
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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, |
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.
“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.
“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 Agent and the Borrower.
- 8 -
“Transfer Date” means, in relation to a transfer, the later of:
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(a) |
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the proposed Transfer Date specified in the Transfer Certificate; and |
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(b) |
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the date on which the 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 notice substantially in the form set out in Part I 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.
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(a) |
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Unless a contrary indication appears any reference in this Agreement to: |
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(i) |
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the “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; |
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(ii) |
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“assets” includes present and future properties, revenues and rights
of every description; |
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(iii) |
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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; |
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(iv) |
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“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; |
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(v) |
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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); |
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(vi) |
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a “regulation” includes any regulation, rule, official directive or
guideline (whether or not having the force of law) but if not having the 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; |
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(vii) |
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a provision of law is a reference to that provision as amended or
re-enacted; and |
- 9 -
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(viii) |
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a time of day is a reference to London time. |
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(b) |
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Section, Clause and Schedule headings are for ease of reference only. |
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(c) |
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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. |
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(d) |
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A Default and an Event of Default is “continuing” if it has not been remedied
or waived. |
1.3 |
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Currency Symbols and Definitions |
“$” and “dollars” denote the lawful currency of the United States of America.
1.4 |
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Third party rights |
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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. |
- 10 -
SECTION 2
THE FACILITY
2. |
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THE FACILITY |
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2.1 |
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The Facility |
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Subject to the terms of this Agreement, the Lenders make available to the Borrower a
dollar term loan facility in an aggregate amount equal to the Total Commitments. |
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2.2 |
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Finance Parties’ rights and obligations |
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(a) |
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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. |
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(b) |
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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. |
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(c) |
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A Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce its rights under the Finance Documents. |
3. |
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PURPOSE |
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3.1 |
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Purpose |
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The Borrower shall apply all amounts borrowed by it under the Facility towards
financing or refinancing, directly or indirectly: |
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(a) |
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the Acquisition; |
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(b) |
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payments to holders of options pursuant to the Merger Agreement; |
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(c) |
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any costs and expenses in relation to the Acquisition; and |
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(d) |
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any financial indebtedness of Target or any of its Subsidiaries. |
3.2 |
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Monitoring |
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No Finance Party is bound to monitor or verify the application of any amount borrowed
pursuant to this Agreement. |
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4. |
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CONDITIONS OF UTILISATION |
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4.1 |
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Initial conditions precedent |
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The Borrower may not deliver a Utilisation Request unless the Agent has received all of
the documents and other evidence listed in Schedule 2 (Conditions precedent) in form and
substance reasonably satisfactory to the Agent. The Agent shall notify the Borrower and the
Lenders promptly upon being so reasonably satisfied. |
- 11 -
4.2 |
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Further conditions precedent |
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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) |
|
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) |
|
Subject to Clause 4.1 (Initial conditions precedent), during the Certain Funds
Period, the Lenders will only be obliged to comply with Clause 5.4 (Lenders’
participation) in relation to a Certain Funds Utilisation, if on the date of the
Utilisation Request and on the proposed Utilisation Date: |
|
(i) |
|
no Major Default is continuing or would result from the proposed
Utilisation; and |
|
|
(ii) |
|
all the Major Representations are true. |
|
(b) |
|
During the Certain Funds Period (save in circumstances where, pursuant to
paragraph (a) above, a Lender is not obliged to comply with Clause 5.4 (Lenders’
participation) and subject as provided in Clause 7.1 (Illegality)), none of the Finance
Parties shall be entitled to: |
|
(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; |
|
|
(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
- 12 -
notwithstanding that they may not have been used or been available for use during
the Certain Funds Period.
- 13 -
SECTION 3
UTILISATION
5. |
|
UTILISATION — LOANS |
|
5.1 |
|
Delivery of a Utilisation Request |
|
|
|
The Borrower may utilise the Facility by delivery to the 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 9 (Interest
Periods). |
|
(b) |
|
Only one Loan may be requested in each Utilisation Request. |
|
(a) |
|
The currency specified in a Utilisation Request must be dollars. |
|
|
(b) |
|
The amount of the proposed 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 Loan available by the Utilisation Date
through its Facility Office. |
|
|
(b) |
|
The amount of each Lender’s participation in each Loan will be equal to the
proportion borne by its Available Commitment to the Available Facility immediately
prior to making the Loan. |
|
|
(c) |
|
The Agent shall notify each Lender of the amount of each Loan and the amount of
its participation in that 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. |
- 14 -
SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
6. |
|
REPAYMENT |
|
6.1 |
|
Repayment of Loans |
|
(a) |
|
The Borrower shall repay the Loans made to it in full on the Termination Date. |
|
|
(b) |
|
The Borrower may not reborrow any part of the Facility which is repaid. |
7. |
|
PREPAYMENT AND CANCELLATION |
|
7.1 |
|
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 Agent upon becoming aware of that event; |
|
|
(b) |
|
upon the 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 Agent
has notified the Borrower or, if earlier, the date specified by the Lender in the
notice delivered to the Agent (being no earlier than the last day of any applicable
grace period permitted by law). |
|
(a) |
|
If any person or group of persons acting in concert gains control of the
Borrower: |
|
(i) |
|
the Borrower shall promptly notify the Agent upon becoming aware of
that event; |
|
|
(ii) |
|
a Lender shall not be obliged to fund a Utilisation; |
|
|
(iii) |
|
if a Lender so requires and notifies the Agent within 30 days of
the Borrower notifying the Agent of the event, the 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. |
- 15 -
|
(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. |
7.3 |
|
Voluntary cancellation |
|
|
|
The Borrower may, if it gives the 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 7.3 shall reduce the Commitments of the Lenders rateably. |
|
7.4 |
|
Debt Issuance |
|
(a) |
|
The Borrower shall (unless the Majority Lenders otherwise agree) prepay Loans
in an amount equal to the Net Proceeds of: |
|
(i) |
|
the issue of any Capital Market Debt Instruments; |
|
|
(ii) |
|
any Syndicated Loans; and |
|
|
(iii) |
|
any issue of Commercial Paper (other than commercial paper issued
to refinance existing issued Commercial Paper) in excess of an aggregate
amount of $500,000,000. |
|
(b) |
|
The Borrower shall apply any amounts under paragraph (a) 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. |
- 16 -
|
(c) |
|
The Borrower shall notify the Agent promptly (and the Agent, upon receiving
such notice, shall notify the Lenders promptly) of any prepayment to be made under this
Clause 7.4. |
7.5 |
|
Voluntary prepayment of Loans |
|
(a) |
|
The Borrower may, if it gives the 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 Loan (but, if in part, being an amount that reduces the amount of the Loan
by a minimum amount of $25,000,000. |
|
|
(b) |
|
A Loan may only be prepaid after the last day of the Availability Period (or,
if earlier, the day on which the Available Facility is zero). |
7.6 |
|
Right of repayment and cancellation in relation to a single Lender |
|
(i) |
|
any sum payable to any Lender by the Borrower is required to be
increased under paragraph (c) of Clause 12.2 (Tax gross-up); |
|
|
(ii) |
|
any Lender claims indemnification from the Borrower under Clause
12.3 (Tax indemnity) or Clause 13.1 (Increased costs); or |
|
|
(iii) |
|
any Lender notifies the Agent of its Additional Cost Rate under
paragraph 3 of Schedule 4 (Mandatory Cost formulae) or the 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 zero,
give the 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. |
|
(a) |
|
Any notice of cancellation or prepayment given by any Party under this Clause 7
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, subject to any Break Costs, without premium or
penalty. |
- 17 -
|
(c) |
|
The Borrower may not reborrow any part of the Facility which is prepaid. |
|
|
(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 Agent receives a notice under this Clause 7 it shall promptly forward a
copy of that notice to either the Borrower or the affected Lender, as appropriate. |
- 18 -
SECTION 5
COSTS OF UTILISATION
8. |
|
INTEREST |
|
8.1 |
|
Calculation of interest |
|
|
|
The rate of interest on each Loan for each Interest Period is the percentage rate per
annum which is the aggregate of the applicable: |
|
(a) |
|
Margin; |
|
|
(b) |
|
LIBOR; and |
|
|
(c) |
|
Mandatory Cost, if any. |
8.2 |
|
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). |
|
8.3 |
|
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 Agent (acting reasonably). Any interest accruing under this Clause 8.3
shall be immediately payable by the Borrower on demand by the Agent. |
|
|
(b) |
|
If any overdue amount consists of all or part of a Loan which became due on a
day which was not the last day of an Interest Period relating to that Loan: |
|
(i) |
|
the first Interest Period for that overdue amount shall have a
duration equal to the unexpired portion of the current Interest Period
relating to that Loan; and |
|
|
(ii) |
|
the rate of interest applying to the overdue amount during that
first Interest Period shall be 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. |
8.4 |
|
Notification of rates of interest |
|
|
|
The Agent shall promptly notify the Lenders and the Borrower of the determination of a
rate of interest under this Agreement. |
- 19 -
9. |
|
INTEREST PERIODS |
|
9.1 |
|
Selection of Interest Periods |
|
(a) |
|
The Borrower may select an Interest Period for a Loan in the Utilisation
Request for that Loan or (if the Loan has already been borrowed) in a Selection Notice. |
|
|
(b) |
|
Each Selection Notice for a Loan is irrevocable and must be delivered to the
Agent by the Borrower not later than the Specified Time. |
|
|
(c) |
|
If the Borrower fails to deliver a Selection Notice to the Agent in accordance
with paragraph (b) above, the relevant Interest Period will be one Month. |
|
|
(d) |
|
Subject to this Clause 9, the Borrower may select an Interest Period of one,
two, three or six Months or any other period agreed between the Borrower and the Agent
(acting on the instructions of all the Lenders). |
|
|
(e) |
|
An Interest Period for a Loan shall not extend beyond the Termination Date. |
|
|
(f) |
|
Each Interest Period for a Loan shall start on the Utilisation Date or (if
already made) on the last day of its preceding Interest Period. |
|
|
(g) |
|
Prior to the Syndication Date, Interest Periods shall be one Month or such
other period as the 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. |
9.2 |
|
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). |
|
9.3 |
|
Consolidation and division of Loans |
|
(a) |
|
Subject to paragraph (b) below, if two or more Interest Periods end on the same
date, those Loans will, unless the Borrower specifies to the contrary in the Selection
Notice for the next Interest Period, be consolidated into, and treated as, a single
Loan on the last day of the Interest Period. |
|
|
(b) |
|
Subject to Clause 4.3 (Maximum number of Loans) and Clause 5.3 (Currency and
amount), if the Borrower requests in a Selection Notice that a Loan be divided into two
or more Loans, that Loan will, on the last day of its Interest Period, be so divided
into the amounts specified in that Selection Notice, being an aggregate amount equal to
the amount of the Loan immediately before its division. |
10. |
|
CHANGES TO THE CALCULATION OF INTEREST |
|
10.1 |
|
Absence of quotations |
|
|
|
Subject to Clause 10.2 (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 |
- 20 -
|
|
Time on the Quotation Day, the applicable LIBOR shall be determined on the basis of the
quotations of the remaining Reference Banks. |
|
10.2 |
|
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 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 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 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 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. |
10.3 |
|
Alternative basis of interest or funding |
|
(a) |
|
If a Market Disruption Event occurs and the Agent or the Borrower so requires,
the 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. |
|
(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
Agent, provide a certificate confirming the amount of its Break Costs for any Interest
Period in which they accrue. |
- 21 -
11. |
|
FEES |
|
11.1 |
|
Commitment fee |
|
(a) |
|
The Borrower shall pay to the 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 amount of the relevant
Lender’s Commitment at the time the cancellation is effective. |
11.2 |
|
Arrangement fee |
|
|
|
The Borrower shall pay to the Arranger an arrangement fee in the amount and at the
times agreed in a Fee Letter. |
|
11.3 |
|
Agency fee |
|
|
|
The Borrower shall pay to the Agent (for its own account) an agency fee in the amount
and at the times agreed in a Fee Letter. |
- 22 -
SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
12. |
|
TAX GROSS UP AND INDEMNITIES |
|
12.1 |
|
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: |
|
(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
|
(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 |
|
(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 |
- 23 -
|
|
|
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 |
|
(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 12.2 (Tax gross-up) or a payment under Clause 12.3 (Tax
indemnity).
“Treaty Lender” means a Lender which:
|
(i) |
|
is treated as a resident of a Treaty State for the purposes of the
Treaty; |
|
|
(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 |
- 24 -
|
(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 12 a reference to
“determines” or “determined” means a determination made in the absolute discretion of
the person making the determination. |
|
(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 Agent accordingly. Similarly, a Lender shall notify the Agent on becoming
so aware in respect of a payment payable to that Lender. If the 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; |
|
|
(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 |
- 25 -
|
(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 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. |
|
(a) |
|
The Borrower shall (within three Business Days of demand by the 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 |
|
|
(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
- 26 -
|
(iii) |
|
to the extent a loss, liability or cost: |
|
(A) |
|
is compensated for by an increased payment under Clause 12.2
(Tax gross-up); or |
|
|
(B) |
|
would have been compensated for by an increased payment under
Clause 12.2 (Tax gross-up) but was not so compensated solely because one
of the exclusions in paragraph (d) of Clause 12.2 (Tax gross-up)
applied. |
|
(c) |
|
A Protected Party making, or intending to make a claim under paragraph (a)
above shall promptly notify the Agent of the event which will give, or has given, rise
to the claim, following which the Agent shall notify the Borrower. |
|
|
(d) |
|
A Protected Party shall, on receiving a payment from the Borrower under this
Clause 12.3, notify the Agent. |
12.4 |
|
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.
12.5 |
|
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
all stamp duty, registration and other similar Taxes payable in respect of any Finance
Document. |
|
12.6 |
|
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 |
- 27 -
|
|
|
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. |
13. |
|
INCREASED COSTS |
|
13.1 |
|
Increased costs |
|
(a) |
|
Subject to Clause 13.3 (Exceptions) the Borrower shall, within three Business
Days of a demand by the 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. |
|
|
(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.
13.2 |
|
Increased cost claims |
|
(a) |
|
A Finance Party intending to make a claim pursuant to Clause 13.1 (Increased
costs) shall notify the Agent of the event giving rise to the claim, following which
the Agent shall promptly notify the Borrower. |
|
|
(b) |
|
Each Finance Party shall, as soon as practicable after a demand by the Agent,
provide a certificate confirming the amount of its Increased Costs. |
|
(a) |
|
Clause 13.1 (Increased costs) does not apply to the extent any Increased Cost
is: |
|
(i) |
|
Tax or is attributable to Tax; |
- 28 -
|
(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. |
14. |
|
OTHER INDEMNITIES |
|
14.1 |
|
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, |
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. |
14.2 |
|
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 25 (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); |
- 29 -
|
(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. |
14.3 |
|
Indemnity to the Agent |
|
|
|
The Borrower shall promptly indemnify the Agent against any cost, loss or liability
incurred by the 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. |
15. |
|
MITIGATION BY THE LENDERS |
|
15.1 |
|
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 7.1 (Illegality), Clause 12 (Tax gross-up and indemnities), Clause 13 (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. |
15.2 |
|
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
15.1 (Mitigation). |
|
|
(b) |
|
A Finance Party is not obliged to take any steps under Clause 15.1 (Mitigation)
if, in the opinion of that Finance Party (acting reasonably), to do so might reasonably
be expected to be prejudicial to it. |
16. |
|
COSTS AND EXPENSES |
|
16.1 |
|
Transaction expenses |
|
|
|
The Borrower shall promptly on demand pay the Agent 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 |
- 30 -
|
(b) |
|
any other Finance Documents executed after the date of this Agreement. |
16.2 |
|
Amendment costs |
|
|
|
If (a) the Borrower requests an amendment, waiver or consent or (b) an amendment is
required pursuant to Clause 26.9 (Change of currency), the Borrower shall, within three
Business Days of demand, reimburse the Agent for the amount of all costs and expenses
(including legal fees) reasonably and properly incurred by the Agent in responding to,
evaluating, negotiating or complying with that request or requirement. |
|
16.3 |
|
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. |
- 31 -
SECTION 7
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
17. |
|
REPRESENTATIONS |
|
|
|
The Borrower makes the representations and warranties set out in this Clause 17 to each
Finance Party on the date of this Agreement or, in relation to the representation and
warranty set out in Clause 17.9 (Information Package) on the date of the Information
Package. |
|
17.1 |
|
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. |
17.2 |
|
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. |
|
17.3 |
|
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. |
17.4 |
|
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. |
|
17.5 |
|
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.
- 32 -
17.6 |
|
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. |
|
17.7 |
|
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. |
|
17.8 |
|
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. |
|
(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. |
17.10 |
|
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 |
17.11 |
|
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. |
|
17.12 |
|
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. |
- 33 -
17.13 |
|
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. |
|
18. |
|
INFORMATION UNDERTAKINGS |
|
|
|
The undertakings in this Clause 18 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. |
|
18.1 |
|
Financial statements |
|
|
|
The Borrower shall supply to the 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. |
18.2 |
|
Requirements as to financial statements |
|
(a) |
|
Each set of financial statements delivered by the Borrower pursuant to Clause
18.1 (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 18.1 (Financial statements) is prepared using GAAP. |
18.3 |
|
Information: miscellaneous |
|
|
|
The Borrower shall supply to the Agent (in sufficient copies for all the Lenders, if
the 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 Agent) may
reasonably request. |
18.4 |
|
Notification of default |
|
(a) |
|
The Borrower shall notify the Agent of any Default (and the steps, if any,
being taken to remedy it) promptly upon becoming aware of its occurrence. |
|
|
(b) |
|
Promptly upon a request by the Agent, the Borrower shall confirm to the 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). |
- 34 -
|
(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 Agent (the “Designated Website”) if: |
|
(i) |
|
the 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 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 Agent. |
If any Lender (a “Paper Form Lender”) does not agree to the delivery of information
electronically then the Agent shall notify the Borrower accordingly and the
Borrower shall supply the information to the Agent (in sufficient copies for each
Paper Form Lender) in paper form. In any event the Borrower shall supply the Agent
with at least one copy in paper form of any information required to be provided by
it.
|
(b) |
|
The 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 Agent. |
|
|
(c) |
|
The Borrower shall promptly upon becoming aware of its occurrence notify the
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. |
If the Borrower notifies the 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 Agent
and each Website Lender is satisfied that the circumstances giving rise to the
notification are no longer continuing.
- 35 -
|
(d) |
|
Any Website Lender may request, through the 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. |
18.6 |
|
“Know your customer” checks |
|
(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 the 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 the Agent
or any Lender supply, or procure the supply of, such documentation and other
evidence as is reasonably requested by the 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 the
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 the Agent supply, or procure the
supply of, such documentation and other evidence as is reasonably requested by the
Agent (for itself) in order for the 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. |
19. |
|
GENERAL UNDERTAKINGS |
|
|
|
The undertakings in this Clause 19 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. |
- 36 -
19.1 |
|
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 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.
19.2 |
|
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. |
|
19.3 |
|
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; |
|
(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; |
- 37 -
|
(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). |
19.4 |
|
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. |
|
19.5 |
|
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). |
|
19.6 |
|
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 Agent informed of any material developments or material changes to the
terms or conditions of the Merger Agreement; and |
|
|
(c) |
|
promptly supply to the 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 Agent may reasonably request, |
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.
20. |
|
EVENTS OF DEFAULT |
|
|
|
Each of the events or circumstances set out in this Clause 20 is an Event of Default
(save as for Clause 20.10 (Acceleration). |
- 38 -
20.1 |
|
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. |
|
(a) |
|
The Borrower does not comply in all material respects with any provision of the
Finance Documents (other than those referred to in Clause 20.1 (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 Agent giving
notice to the Borrower or the Borrower becoming aware of the failure to comply. |
20.3 |
|
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 20.3 (Misrepresentation) if the failure to comply is capable of being remedied and is
remedied within 20 Business Days of the Agent giving notice to the Borrower or the Borrower
becoming aware of the failure to comply. |
|
20.4 |
|
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). |
|
|
(d) |
|
No Event of Default will occur under this Clause 20.4 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). |
|
(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 |
- 39 -
|
|
|
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. |
20.6 |
|
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.
20.7 |
|
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. |
|
20.8 |
|
Unlawfulness |
|
|
|
It is or becomes unlawful for the Borrower to perform any of its obligations under the
Finance Documents. |
|
20.9 |
|
Repudiation |
|
|
|
The Borrower repudiates a Finance Document or evidences in writing an intention to
repudiate a Finance Document. |
|
20.10 |
|
Acceleration |
|
|
|
On and at any time after the occurrence of an Event of Default and whilst it is
continuing the 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; |
- 40 -
|
(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 Agent on the instructions of the
Majority Lenders. |
- 41 -
SECTION 8
CHANGES TO PARTIES
21. |
|
CHANGES TO THE LENDERS |
|
21.1 |
|
Assignments and transfers by the Lenders |
|
|
|
Subject to this Clause 21, 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”). |
21.2 |
|
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 Agent of written confirmation from the New Lender (in
form and substance satisfactory to the 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 |
|
|
(ii) |
|
performance by the 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 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 21.5
(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 |
- 42 -
|
(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 12 (Tax gross-up and indemnities) or Clause 13 (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.
21.3 |
|
Assignment or transfer fee |
|
|
|
The New Lender shall, on the date upon which an assignment or transfer takes effect,
pay to the Agent (for its own account) a fee of $2,500. |
21.4 |
|
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.
|
(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 21; or |
- 43 -
|
(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. |
21.5 |
|
Procedure for transfer |
|
(a) |
|
Subject to the conditions set out in Clause 21.2 (Conditions of assignment or
transfer) a transfer is effected in accordance with paragraph (c) below when the Agent
executes an otherwise duly completed Transfer Certificate delivered to it by the
Existing Lender and the New Lender. The 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 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”); |
|
|
(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 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 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”. |
21.6 |
|
Copy of Transfer Certificate to Borrower |
|
|
|
The Agent shall, as soon as reasonably practicable after it has executed a Transfer
Certificate, send to the Borrower a copy of that Transfer Certificate. |
- 44 -
21.7 |
|
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.
21.8 |
|
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 |
|
|
(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.
22. |
|
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. |
- 45 -
SECTION 9
THE FINANCE PARTIES
23. |
|
ROLE OF THE AGENT AND THE ARRANGER |
23.1 |
|
Appointment of the Agent |
|
(a) |
|
Each other Finance Party appoints the Agent to act as its agent under and in
connection with the Finance Documents. |
|
|
(b) |
|
Each other Finance Party authorises the Agent to exercise the rights, powers,
authorities and discretions specifically given to the Agent under or in connection with
the Finance Documents together with any other incidental rights, powers, authorities
and discretions. |
|
(a) |
|
The Agent shall promptly forward to a Party the original or a copy of any
document which is delivered to the Agent for that Party by any other Party. |
|
|
(b) |
|
Except where a Finance Document specifically provides otherwise, the Agent is
not obliged to review or check the adequacy, accuracy or completeness of any document
it forwards to another Party. |
|
|
(c) |
|
If the 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 the Agent is aware of the non-payment of any principal, interest, commitment
fee or other fee payable to a Finance Party (other than the Agent or the Arranger)
under this Agreement it shall promptly notify the other Finance Parties. |
|
|
(e) |
|
The Agent’s duties under the Finance Documents are solely mechanical and
administrative in nature. |
23.3 |
|
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. |
|
(a) |
|
Nothing in this Agreement constitutes the Agent or the Arranger as a trustee or
fiduciary of any other person. |
|
|
(b) |
|
Neither the 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. |
23.5 |
|
Business with the Group |
The 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.
- 46 -
23.6 |
|
Rights and discretions of the Agent |
|
(a) |
|
The 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) |
|
The 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 20.1 (Non-payment)); and |
|
|
(ii) |
|
any right, power, authority or discretion vested in any Party or the
Majority Lenders has not been exercised. |
|
(c) |
|
The Agent may engage, pay for and rely on the advice or services of any
lawyers, accountants, surveyors or other experts. |
|
|
(d) |
|
The Agent may act in relation to the Finance Documents through its personnel
and agents. |
|
|
(e) |
|
The 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 the 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. |
23.7 |
|
Majority Lenders’ instructions |
|
(a) |
|
Unless a contrary indication appears in a Finance Document, the 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, 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) |
|
The 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. |
- 47 -
|
(d) |
|
In the absence of instructions from the Majority Lenders, (or, if appropriate,
the Lenders) the Agent may act (or refrain from taking action) as it considers to be in
the best interest of the Lenders. |
|
|
(e) |
|
The 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. |
23.8 |
|
Responsibility for documentation |
|
|
|
Neither the Agent nor the Arranger is responsible for: |
|
(a) |
|
the adequacy, accuracy and/or completeness of any information (whether oral or
written) provided by the 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. |
23.9 |
|
Exclusion of liability |
|
(a) |
|
Without limiting paragraph (b) below (and without prejudice to the provisions
of paragraph (e) of Clause 26.10 (Disruption to Payment Systems etc.), the 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 the Agent) may take any proceedings against any officer,
employee or agent of the Agent in respect of any claim it might have against the 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 the Agent may
rely on this Clause. |
|
|
(c) |
|
The Agent will not 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
the Agent if the 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 the Agent for that purpose. |
|
|
(d) |
|
Nothing in this Agreement shall oblige the 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 the 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 the Agent or the Arranger. |
- 48 -
23.10 |
|
Lenders’ indemnity to the Agent |
|
|
|
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 the 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 the Agent (otherwise than by reason of the Agent’s
gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability
pursuant to Clause 26.10 (Disruption to Payment Systems etc.) notwithstanding the Agent’s
negligence, gross negligence or any other category of liability whatsoever but not including
any claim based on the fraud of the Agent) in acting as Agent under the Finance Documents
(unless the Agent has been reimbursed by the Borrower pursuant to a Finance Document). |
23.11 |
|
Resignation of the Agent |
|
(a) |
|
The 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 the 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 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 the 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. |
|
|
(e) |
|
The 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 23. 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. |
|
(a) |
|
In acting as agent for the Finance Parties, the 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. |
- 49 -
|
(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. |
23.13 |
|
Relationship with the Lenders |
|
(a) |
|
The 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 Agent with any information required by the Agent
in order to calculate the Mandatory Cost in accordance with Schedule 4 (Mandatory Cost
formulae). |
23.14 |
|
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 the 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 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 the 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. |
23.15 |
|
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 Agent shall (in consultation with the Borrower)
appoint another Lender or an Affiliate of a Lender to replace that Reference Bank. |
23.16 |
|
Agent’s Management Time |
|
|
|
Any amount payable to the Agent under Clause 14.3 (Indemnity to the Agent), Clause 16
(Costs and expenses) and Clause 23.10 (Lenders’ indemnity to the Agent) shall include the
cost of utilising the Agent’s management time or other resources and will be |
- 50 -
|
|
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 11 (Fees). |
23.17 |
|
Deduction from amounts payable by the Agent |
|
|
|
If any Party owes an amount to the 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. |
24. |
|
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. |
25. |
|
SHARING AMONG THE FINANCE PARTIES |
|
25.1 |
|
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 26 (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 Agent; |
|
|
(b) |
|
the 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 Agent and distributed in accordance with Clause 26
(Payment mechanics), without taking account of any Tax which would be imposed on the
Agent in relation to the receipt, recovery or distribution; and |
|
|
(c) |
|
the Recovering Finance Party shall, within three Business Days of demand by the
Agent, pay to the Agent an amount (the “Sharing Payment”) equal to such receipt or
recovery less any amount which the Agent determines may be retained by the Recovering
Finance Party as its share of any payment to be made, in accordance with Clause 26.5
(Partial payments). |
- 51 -
25.2 |
|
Redistribution of payments |
|
|
|
The 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 26.5 (Partial payments). |
|
25.3 |
|
Recovering Finance Party’s rights |
|
(a) |
|
On a distribution by the Agent under Clause 25.2 (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. |
25.4 |
|
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 25.2 (Redistribution of payments) shall, upon request of the Agent,
pay to the 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 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. |
|
(a) |
|
This Clause 25 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. |
- 52 -
SECTION 10
ADMINISTRATION
26.1 |
|
Payments to the Agent |
|
(a) |
|
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
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 Agent as being customary at the
time for settlement of transactions in the relevant currency in the place of payment. |
|
|
(b) |
|
Payment shall be made to such account in the principal financial centre of the
country of that currency with such bank as the Agent specifies. |
26.2 Distributions by the Agent
Each payment received by the Agent under the Finance Documents for another Party shall,
subject to Clause 26.3 (Distributions to the Borrower), Clause 26.4 (Clawback) and Clause
23.17 (Deduction from amounts payable by the Agent) be made available by the 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 Agent by not less than five Business Days’ notice
with a bank in the principal financial centre of the country of that currency.
26.3 |
|
Distributions to the Borrower |
|
|
|
The Agent may (with the consent of the Borrower or in accordance with Clause 27
(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. |
|
(a) |
|
Where a sum is to be paid to the Agent under the Finance Documents for another
Party, the 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 the Agent pays an amount to another Party and it proves to be the case that
the Agent had not actually received that amount, then the Party to whom that amount (or
the proceeds of any related exchange contract) was paid by the Agent shall on demand
refund the same to the Agent together with interest on that amount from the date of
payment to the date of receipt by the Agent, calculated by the Agent to reflect its
cost of funds. |
|
(a) |
|
If the Agent receives a payment that is insufficient to discharge all the
amounts then due and payable by the Borrower under the Finance Documents, the Agent |
- 53 -
|
|
|
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 Agent 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 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. |
26.6 |
|
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. |
|
26.7 |
|
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. |
|
(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. |
|
|
(c) |
|
Any amount expressed to be payable in a currency other than dollars shall be
paid in that other 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 |
- 54 -
|
|
|
translated into, or paid in, the currency or currency unit of that country
designated by the 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 Agent (acting reasonably). |
|
(b) |
|
If a change in any currency of a country occurs, this Agreement will, to the
extent the 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. |
26.10 |
|
Disruption to Payment Systems etc. |
|
|
|
If either the Agent determines (in its discretion) that a Disruption Event has occurred
or the Agent is notified by the Borrower that a Disruption Event has occurred: |
|
(a) |
|
the 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 Agent may deem necessary in the circumstances; |
|
|
(b) |
|
the 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 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 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, waiver of) the terms of the Finance
Documents notwithstanding the provisions of Clause 32 (Amendments and Waivers); |
|
|
(e) |
|
the 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 Agent)
arising as a result of its taking, or failing to take, any actions pursuant to or in
connection with this Clause 26.10; and |
|
|
(f) |
|
the Agent shall notify the Finance Parties of all changes agreed pursuant to
paragraph (d) above. |
27. |
|
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 |
- 55 -
|
|
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. |
|
28. |
|
NOTICES |
|
28.1 |
|
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. |
|
28.2 |
|
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 the Agent on or prior
to the date on which it becomes a Party; and |
|
|
(c) |
|
in the case of the 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 Agent (or the Agent may notify to the other Parties, if a change is made by the Agent)
by not less than five Business Days’ notice.
|
(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 |
|
|
(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 28.2 (Addresses), if addressed to that department or
officer.
|
(b) |
|
Any communication or document to be made or delivered to the Agent will be
effective only when actually received by the Agent and then only if it is expressly
marked for the attention of the department or officer identified with the Agent’s
signature below (or any substitute department or officer as the Agent shall specify for
this purpose). |
|
|
(c) |
|
All notices from or to the Borrower shall be sent through the Agent. |
- 56 -
28.4 |
|
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 28.2 (Addresses) or changing its own address or fax number,
the Agent shall notify the other Parties. |
|
28.5 |
|
Electronic communication |
|
(a) |
|
Any communication to be made between the Agent and a Lender under or in
connection with the Finance Documents may be made by electronic mail or other
electronic means, if the 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 the 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 the Agent only if it is addressed in such
a manner as the Agent shall specify for this purpose. |
|
(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 |
|
|
(ii) |
|
if not in English, and if so required by the 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. |
29. |
|
CALCULATIONS AND CERTIFICATES |
|
29.1 |
|
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. |
29.2 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. |
- 57 -
|
(b) |
|
Certificates granted on behalf of the Borrower shall be given without personal
liability on part of the officer signing them. |
29.3 |
|
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. |
|
30. |
|
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. |
|
31. |
|
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. |
32. |
|
AMENDMENTS AND WAIVERS |
|
(a) |
|
Subject to Clause 32.2 (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. |
|
|
(b) |
|
The Agent may effect, on behalf of any Finance Party, any amendment or waiver
permitted by this Clause. |
|
(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; |
- 58 -
|
(vii) |
|
Clause 2.2 (Finance Parties’ rights and obligations), Clause 21
(Changes to the Lenders) or this Clause 32; |
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 the Agent
or the Arranger may not be effected without the consent of the Agent or the Arranger as
the case may be. |
33. |
|
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. |
- 59 -
SECTION 11
GOVERNING LAW AND ENFORCEMENT
34. |
|
GOVERNING LAW |
|
|
|
This Agreement is governed by English law. |
|
35. |
|
ENFORCEMENT |
|
35.1 |
|
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 35.1 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.
- 60 -
SCHEDULE 1
The Original Lenders
|
|
|
|
|
Name of Original Lender |
|
Commitment |
Citibank, N.A. |
|
$ |
5,000,000,000 |
|
Deutsche Bank AG, London Branch |
|
$ |
5,000,000,000 |
|
HSBC Bank plc |
|
$ |
5,000,000,000 |
|
- 61 -
SCHEDULE 2
Conditions Precedent to Initial Utilisation
|
(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. |
|
|
A legal opinion of Xxxxxxxx Chance LLP, legal advisers to the Arranger and the Agent 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) |
|
Evidence that the fees, costs and expenses then due from the Borrower pursuant
to Clause 11 (Fees) and Clause 16 (Costs and expenses) have been paid or will be paid
by the first Utilisation Date. |
- 62 -
|
(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. |
- 63 -
SCHEDULE 3
Utilisation Requests
From: AstraZeneca PLC
To: HSBC Bank plc
Dated:
Dear Sirs
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 Loan on the following terms: |
|
|
|
Proposed Utilisation Date:
|
|
[ ] (or, if that is not a Business Day, the next Business Day) |
|
|
|
Currency of Loan:
|
|
$ [ ] |
|
|
|
Amount:
|
|
[ ] or, if less, the Available Facility |
|
|
|
Interest Period:
|
|
[ ] |
3. |
|
We confirm that if applicable each condition specified in Clause 4.2 (Further
conditions precedent) is satisfied on the date of this Utilisation Request. |
|
4. |
|
The proceeds of this Loan should be credited to [account]. |
|
5. |
|
This Utilisation Request is irrevocable. |
Yours faithfully
authorised signatory for
AstraZeneca PLC
- 64 -
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 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
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 Agent. This
percentage will be certified by that Lender in its notice to the 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 Agent as follows: |
|
|
|
|
|
|
|
Ex 0.01 |
|
|
|
|
300
|
|
per cent. per annum. |
Where:
E |
|
|
is designed to compensate Lenders for amounts payable under the Fees Rules and
is calculated by the Agent as being the average of the most recent rates of charge
supplied by the Reference Banks to the 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 |
|
|
(c) |
|
“Tariff Base” has the meaning given to it in, and will be calculated in
accordance with, the Fees Rules. |
- 65 -
6. |
|
If requested by the Agent, each Reference Bank shall, as soon as practicable after
publication by the Financial Services Authority, supply to the 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 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 Agent may reasonably require for such purpose. |
|
|
Each Lender shall promptly notify the Agent of any change to the information provided by it
pursuant to this paragraph. |
|
8. |
|
The 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 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 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 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. |
- 66 -
SCHEDULE 5
Form of Transfer Certificate
To: HSBC Bank plc as Agent
|
|
|
From: |
|
[The Existing Lender] (the “Existing Lender”) and [The New
Lender] (the “New Lender”) |
Dated:
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 21.5 (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 21.5 (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 28.2 (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 21.4 (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 |
- 67 -
|
(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 Agent and the
Transfer Date is confirmed as [ ]. |
|
|
|
|
|
|
[Agent] |
|
|
|
By: |
|
|
|
|
|
1 |
|
Include if New Lender comes within paragraph (i)(B) of the definition of Qualifying Lender in Clause 1.1 (Definitions). |
- 68 -
SCHEDULE 6
Timetables
|
|
|
|
|
Loans in Dollars |
Delivery of a duly completed
Utilisation Request (Clause 5.1
|
|
U-2 |
(Delivery of a Utilisation Request)
or a Selection Notice (Clause 9.1
(Selection of Interest Periods))
|
|
8.30am |
|
|
|
Agent notifies the Lenders of the
Loan in accordance with Clause 5.4
|
|
U-2 |
(Lenders’ participation)
|
|
10.00am |
|
|
|
LIBOR is fixed
|
|
Quotation Day as of 11.00am |
“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
- 69 -
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/
Xxxxx Xxxxxxx |
|
|
|
|
/s/
Xxxxxxx Xxxxxxx-Xxxxx |
|
|
Address:
|
|
Xxxxxxxxxx Xxxxx,
|
|
|
|
|
0 Xxxxx Xxxxxxxxxx Xxxxxx
|
|
|
|
|
Xxxxxx XX0X 0XX
|
|
|
|
|
|
|
|
|
|
HSBC BANK PLC |
|
|
|
|
|
|
|
|
|
By: |
|
/s/ Xxxx Xxxx |
|
|
|
Address:
|
|
0 Xxxxxx Xxxxxx
|
|
|
|
|
Xxxxxx X00 0XX
|
|
|
- 70 -
|
|
|
|
|
|
|
THE AGENT |
|
|
|
|
|
|
|
|
|
HSBC BANK PLC |
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Xxxxx Stent
|
|
|
|
Address:
|
|
0 Xxxxxx Xxxxxx
|
|
|
|
|
Xxxxxx X00 0XX
|
|
|
|
|
|
|
|
|
|
Fax: x00 0(00) 0000 0000 |
|
|
|
|
|
|
|
|
|
THE ORIGINAL LENDERS
|
|
|
|
CITIBANK, N.A.
|
|
|
. |
|
|
|
|
|
|
|
|
|
|
By: |
|
/s/ Xxxxxxx Xxxxxx |
|
|
|
|
|
|
|
|
|
|
|
Address:
|
|
Citigroup Centre,
|
|
|
|
|
00 Xxxxxx Xxxxxx
|
|
|
|
|
Xxxxxx X00 0XX
|
|
|
|
|
|
|
|
|
|
DEUTSCHE BANK AG, LONDON BRANCH |
|
|
|
By: |
|
/s/ Xxxxx Xxxxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Xxxxxxx Xxxxxxx-Xxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Address:
|
|
Xxxxxxxxxx Xxxxx,
|
|
|
|
|
0 Xxxxx Xxxxxxxxxx Xxxxxx
|
|
|
|
|
Xxxxxx XX0X 0XX
|
|
|
|
|
|
|
|
|
|
HSBC BANK PLC |
|
|
|
|
|
|
|
|
|
By: |
|
/s/ Xxxxx Xxxxx |
|
|
|
|
|
|
|
|
|
|
|
Address:
|
|
0 Xxxxxx Xxxxxx
|
|
|
|
|
Xxxxxx X00 0XX
|
|
|
- 71 -