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UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
WASHINGTON, D.C.
20549
FORM 8-K
CURRENT REPORT
Pursuant to Section
13 or 15(d) of the
Securities Exchange
Act of 1934
Date of Report (Date of
earliest event reported): June 30, 2023
JANUS HENDERSON GROUP PLC
(Exact name of registrant
as specified in its charter)
Jersey,
Channel Islands |
001-38103 |
98-1376360 |
(State or other jurisdiction of |
(Commission File Number) |
(IRS Employer |
incorporation) |
|
Identification No.) |
201 Bishopsgate |
|
EC2M3AE |
London, United Kingdom |
|
(Zip Code) |
(Address of principal executive offices) |
|
|
+44
(0) 20 7818
1818
(Registrant’s
telephone number, including area code)
N/A
(Former name or former address, if changed since
last report.)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant
under any of the following provisions (see General Instruction A.2. below):
¨ | Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b)
of the Act:
Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered |
Common Stock, $1.50 Per Share Par Value |
JHG |
New York Stock Exchange |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company o
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o
Item 1.01 Entry into a Material Definitive Agreement.
On June 30, 2023, Janus
Henderson Group plc (the “Company”) entered into a five-year, $200.0 million unsecured, multi-currency revolving credit facility
(the “Revolving Credit Facility”), with Janus Henderson US (Holdings) Inc., as guarantor, Bank of America Europe Designated
Activity Company, as coordinator, bookrunner and mandated lead arranger, and facility agent, Citibank, N.A., as bookrunner and mandated
lead arranger, BNP Paribas, London Branch, NatWest Markets plc, State Street Bank and Trust Company, and Wells Fargo Bank, National Association,
as mandated lead arrangers, and the other lenders party thereto. The Revolving Credit Facility includes an option for the Company to request
an increase to the overall amount of the Revolving Credit Facility of up to an additional $50.0 million. As discussed in Item 1.02 of
this Current Report on Form 8-K, the Revolving Credit Facility replaced our prior $200 million revolving credit facility, which was
terminated upon our entry into the new Revolving Credit Facility.
The Revolving Credit Facility
may be used for general corporate purposes and has a maturity date of June 30, 2028, with two one-year extension options which can
be exercised at the discretion of the Company with the lenders’ consent prior to the first and second anniversary of the date of
the agreement, respectively. The Company may be required to prepay any borrowings upon a change of control. It may also voluntarily
prepay any borrowings denominated in USD or GBP on five business days’ notice and any borrowings denominated in EUR or AUD on three
business days’ notice, in each case without premium or penalty (subject to applicable breakage costs).
The Revolving Credit Facility
is guaranteed by Janus Henderson US (Holdings) Inc. (formerly known as Janus Capital Group Inc.) but only for such period as the 4.875%
senior notes due 2025 (the “2025 Senior Notes”) (or any debt issued to refinance the 2025 Senior Notes) are outstanding with
Janus Capital Group Inc. as issuer.
Borrowings under the Revolving
Credit Facility will bear interest at a rate equal to the aggregate of (i) the term reference rate (being, for loans denominated
in EUR, the euro interbank offered rate and, for loans denominated in AUD, the Australian bank bill swap reference rate) or the compounded
reference rate (being, for loans denominated in USD, the secured overnight financing rate as administered by the Federal Reserve Bank
of New York and, for loans denominated in GBP, the sterling overnight index average reference rate displayed on the relevant screen of
any authorised distributor of that reference rate, in each case compounded daily in arrears, plus a credit adjustment spread (subject
to a zero floor on such aggregate daily rate)), and (ii) the applicable margin which is based on the Company’s credit rating.
Interest is payable on the last day of selected interest periods (which may be one, two or three months or, in relation to borrowings
in EUR or AUD, one, three or six months). Certain fees, including a commitment fee and utilization fees, are also payable under the Revolving
Credit Facility.
The Revolving Credit Facility
contains affirmative and negative covenants customarily applicable to such credit facilities, including (subject to negotiated exceptions)
covenants restricting security, disposals and subsidiary indebtedness. It also contains a financial covenant with respect to leverage.
The financing leverage ratio cannot exceed 3.00x EBITDA provided that, if any material acquisition occurs during any measurement period,
then at the election of the Company the maximum leverage shall be increased to 3.50x times EBITDA for such measurement period and the
next succeeding measurement period (any period with such increase a “Leverage Ratio Increase Period”), provided, further,
that no more than two Leverage Ratio Increase Periods may be elected by the Company during the term of the Revolving Credit Facility.
The Revolving Credit Facility
contains customary provisions relating to acceleration of payment obligations in an event of default, which include non-payment of amounts
under the Revolving Credit Facility; covenant defaults, subject to grace periods for certain covenants; inaccurate representations or
warranties in any material respect, commencement of insolvency proceedings and cross-default on other indebtedness.
| Item 1.02 | Termination of a Material Definitive Agreement |
In connection with the entry into of the Revolving Credit Facility
on June 30, 2023, we terminated our prior $200.0 million revolving credit facility dated February 16, 2017 (as amended and restated
effective December 21, 2021), between Janus Henderson Group plc, as borrower, Janus Henderson US (Holdings) Inc. (formerly known
as Janus Capital Group Inc.), as guarantor, Bank of America Europe Designated Activity Company (as successor in title to Bank of America
Merrill Lynch International Limited), as facility agent, and the other lenders party thereto. See the Company’s Current Report on
Form 8-K filed on May 30, 2017, and the Company’s Annual Report on Form 10-K filed on February 25, 2022, for
descriptions of the terms of the prior credit facility.
Item 2.03 Creation of a Direct
Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
On June 30, 2023, we entered into the Revolving Credit Facility
described in Item 1.01 above, which information is incorporated by reference into this Item 2.03.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. |
|
Description |
10.1 |
|
Facility Agreement, US$200,000,000 Revolving Credit Facility, dated as of June 30, 2023, among Janus Henderson Group plc, as borrower, Janus Henderson US (Holdings) Inc., as guarantor, Bank of America Europe Designated Activity Company, as coordinator, bookrunner and mandated lead arranger, and facility agent, Citibank, N.A., as bookrunner and mandated lead arranger, BNP Paribas, London Branch, NatWest Markets plc, State Street Bank and Trust Company, and Wells Fargo Bank, National Association, as mandated lead arrangers, and the other lenders party thereto. |
104 |
|
Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
JANUS HENDERSON GROUP PLC |
|
|
|
|
|
By: |
/s/ Roger Thompson |
|
Name: |
Roger Thompson |
|
Title: |
Chief Financial Officer |
Date: July 5, 2023
Exhibit 10.1
Execution version
30 June 2023
JANUS HENDERSON GROUP PLC
and
BANK OF AMERICA EUROPE DESIGNATED ACTIVITY COMPANY
as Coordinator, Bookrunner and Mandated Lead Arranger
and
as Facility Agent
FACILITY AGREEMENT
US$200,000,000
REVOLVING CREDIT FACILITY |
Herbert Smith Freehills LLP
TABLE OF CONTENTS
Clause |
Headings |
Page |
1. |
Definitions and interpretation |
1 |
2. |
The Facility |
19 |
3. |
Purpose |
23 |
4. |
Conditions of Utilisation |
23 |
5. |
Utilisation |
24 |
6. |
Optional Currencies |
25 |
7. |
Repayment |
26 |
8. |
Prepayment and cancellation |
27 |
9. |
Interest |
31 |
10. |
Interest Periods |
33 |
11. |
Changes to the calculation of interest |
34 |
12. |
Fees |
36 |
13. |
Tax gross-up and indemnities |
37 |
14. |
Increased Costs |
46 |
15. |
Other indemnities |
48 |
16. |
Mitigation by the Lenders |
49 |
17. |
Costs and expenses |
49 |
18. |
Guarantee and indemnity |
50 |
19. |
Representations |
54 |
20. |
Information undertakings |
57 |
21. |
Financial covenants |
60 |
22. |
General undertakings |
63 |
23. |
Events of Default |
67 |
24. |
Changes to the Lenders |
70 |
25. |
Changes to the Obligors |
75 |
26. |
Role of the Administrative Parties |
76 |
27. |
Conduct of business by the Finance Parties |
86 |
28. |
Sharing among the Finance Parties |
86 |
29. |
Payment mechanics |
88 |
30. |
Set-off |
91 |
31. |
Notices |
92 |
32. |
Calculations and certificates |
94 |
33. |
Partial invalidity |
94 |
34. |
Remedies and waivers |
95 |
35. |
Amendments and waivers |
95 |
36. |
Confidential Information |
100 |
37. |
Confidentiality of Funding Rates |
103 |
38. |
Counterparts |
104 |
39. |
Contractual Recognition of Bail-In |
104 |
40. |
Governing law |
106 |
41. |
Waiver of trial by jury |
106 |
42. |
Enforcement |
106 |
43. |
USA Patriot Act & BENEFICIAL OWNERSHIP REGULATION |
107 |
Schedule 1 Original Parties |
108 |
Schedule 2 Conditions precedent |
109 |
Schedule 3 Form of Utilisation Request |
113 |
Schedule 4 Form of Accordion Increase Confirmation |
114 |
Schedule 5 Form of Transfer Certificate |
117 |
Schedule 6 Form of Assignment Agreement |
120 |
Schedule 7 Form of Accession Letter |
123 |
Schedule 8 Form of Resignation Letter |
124 |
Schedule 9 Form of Increase Confirmation |
125 |
Schedule 10 Reference Rate Terms |
128 |
Schedule 11 Daily Non-Cumulative Compounded RFR Rate |
139 |
Schedule 12 Form of Compliance Certificate |
141 |
Schedule 13 Existing Security |
142 |
Schedule 14 Timetables |
143 |
THIS AGREEMENT is dated
30 June 2023 and made
BETWEEN:
| (1) | JANUS HENDERSON GROUP PLC (registered number 101484) (the "Company"); |
| (2) | JANUS HENDERSON US (HOLDINGS) INC. (registered number 2850271) (the "Original Guarantor"); |
| (3) | BANK OF AMERICA EUROPE DESIGNATED ACTIVITY COMPANY as coordinator, bookrunner and mandated lead arranger (the "Coordinator,
Bookrunner and Mandated Lead Arranger"); |
| (4) | CITIBANK, N.A. as bookrunner and mandated lead arranger (the "Bookrunner and Mandated Lead Arranger"); |
| (5) | BNP PARIBAS, LONDON BRANCH, NATWEST MARKETS PLC, STATE STREET BANK AND TRUST COMPANY and WELLS FARGO BANK, NATIONAL ASSOCIATION
as mandated lead arrangers (the "Mandated Lead Arrangers"); |
| (6) | THE FINANCIAL INSTITUTIONS listed in Schedule 1 (Original Parties) as original lenders (in this capacity, the "Original
Lenders"); and |
| (7) | BANK OF AMERICA EUROPE DESIGNATED ACTIVITY COMPANY as facility agent (in this capacity, the "Facility Agent"). |
IT IS AGREED as follows:
| 1. | Definitions and interpretation |
In this Agreement:
"2025 Senior Notes"
means the USD300,000,000 senior notes due in 2025 issued by the Original Guarantor.
"Accession Letter"
means a document substantially in the form set out in Schedule 7 (Form of Accession Letter), with any amendments
the Facility Agent and the Company may agree.
"Accordion Increase"
has the meaning given to that term in Clause 2.4 (Accordion Increase in Commitments).
"Accordion Increase
Amount" has the meaning given to that term in Clause 2.4 (Accordion Increase in Commitments).
"Accordion Increase
Confirmation" means an agreement substantially in the form set out in Schedule 4 (Form of Accordion Increase
Confirmation) or any other form agreed between the Company, the Facility Agent and the Accordion Lender.
"Accordion Increase
Date" has the meaning given to that term in Clause 2.4 (Accordion Increase in Commitments).
"Accordion Lender"
has the meaning given to that term in Clause 2.4 (Accordion Increase in Commitments).
"Accordion Request"
has the meaning given to that term in Clause 2.4 (Accordion Increase in Commitments).
"Additional Business
Day" means any day specified as such in the applicable Reference Rate Terms.
"Additional Guarantor"
means a person which becomes a Guarantor in accordance with Clause 25 (Changes to the Obligors).
"Administrative Party"
means the Arrangers or the Facility Agent.
"Affiliate"
means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding
Company.
"Agent's Spot Rate
of Exchange" means Bloomberg's (at http://www.bloomberg.com/markets/currencies/major) or, if different, the Facility
Agent's spot rate of exchange for the purchase of the relevant currency with US Dollars in the London foreign exchange market at or about
11:00 a.m. on a particular day.
"Alternative Term Rate"
means any rate specified as such in the applicable Reference Rate Terms.
"Alternative Term Rate
Adjustment" means any rate which is either:
| (a) | specified as such in the applicable Reference Rate Terms; or |
| (b) | determined by the Facility Agent (or by any other Finance Party which agrees to determine that rate in place of the Facility Agent)
in accordance with the methodology specified in the applicable Reference Rate Terms. |
"Anti-Corruption Laws"
means all laws, rules and regulations of any jurisdiction applicable to the Company or its Subsidiaries from time to time
directly regulating bribery or corruption.
"Anti-Money Laundering
Laws" means all laws, rules and regulations of any jurisdiction applicable to the Company or its Subsidiaries from
time to time directly regulating anti-money laundering.
"Arrangers" means
the Coordinator, Bookrunner and Mandated Lead Arranger, the Bookrunner and Mandated Lead Arranger and the Mandated Lead Arrangers.
"Assignment Agreement"
means an agreement substantially in the form set out in Schedule 6 (Form of Assignment Agreement) or any other form agreed between
the relevant assignor and assignee.
"AUD"
means Australian Dollars.
"Authorisation"
means an authorisation, consent, approval, resolution, permit, licence, exemption, filing, notarisation or registration.
"Availability Period"
means the period from and including the date of this Agreement to and including the date falling one month before the Termination Date.
"Available Commitment"
means a Lender's Commitment minus:
| (a) | the Base Currency Amount of its participation in any outstanding Loans; and |
| (b) | in relation to any proposed Utilisation, the Base Currency Amount of its participation in any Loans that are due to be made on or
before the proposed Utilisation Date, |
other than that Lender's participation in any Loans that
are due to be repaid or prepaid on or before the proposed Utilisation Date.
"Available Facility
"means the aggregate for the time being of each Lender's Available Commitment.
"Baseline CAS"
means, in relation to a Compounded Rate Loan in a Compounded Rate Currency, any rate which is either:
| (a) | specified as such in the applicable Reference Rate Terms; or |
| (b) | determined by the Facility Agent (or by any other Finance Party which agrees to determine that rate in place of the Facility Agent)
in accordance with the methodology specified in the applicable Reference Rate Terms. |
"Base Currency"
means USD.
"Base Currency Amount"
means, in relation to a Loan:
| (a) | the amount specified in the Utilisation Request delivered by the Company for that Loan; or |
| (b) | if the amount requested is not denominated in the Base Currency, that amount converted into the Base Currency at the Agent's Spot
Rate of Exchange on the date which is three Business Days before the Utilisation Date or, if later, on the date the Facility Agent receives
the Utilisation Request, |
in each case, adjusted to reflect any repayment, prepayment,
consolidation or division of the Loan.
"Beneficial Ownership
Certification" means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
"Beneficial Ownership
Regulation" means 31 C.F.R. § 1010.230.
"Break Costs"
means any amount specified as such in the applicable Reference Rate Terms.
"Business Day"
means a day (other than a Saturday or Sunday) on which banks are open for general business in London, Boston and New York and:
| (a) | (in relation to any date for payment or purchase of, or the fixing of an interest rate in relation to, a currency other than euro
or AUD) the principal financial centre of the country of that currency; |
| (b) | (in relation to any date for payment or purchase of, or the fixing of an interest rate in relation to, euro) which is a TARGET Day;
or |
| (i) | the fixing of an interest rate in relation to a Term Rate Loan in a currency other than euro; |
| (ii) | any date for payment or purchase of an amount relating to a Compounded Rate Loan; or |
| (iii) | the determination of the first day or the last day of an Interest Period for a Compounded Rate Loan, or otherwise in relation to the
determination of the length of such an Interest Period), |
which is an Additional Business Day relating to that Loan
or Unpaid Sum.
"Central Bank Rate"
has the meaning given to that term in the applicable Reference Rate Terms.
"Central Bank Rate
Adjustment" has the meaning given to that term in the applicable Reference Rate Terms.
"Code"
means the U.S. Internal Revenue Code of 1986.
"Commitment"
means:
| (a) | in relation to an Original Lender, the amount set opposite its name in Schedule 1 (Original Parties) under the heading "Commitment"
and the amount of any other Commitment it acquires under this Agreement; and |
| (b) | in relation to any other Lender, the amount of any Commitment it acquires under this Agreement, |
to the extent not cancelled, reduced or transferred by it
under this Agreement or assumed by it in accordance with Clause 2.3 (Increase) or Clause 2.4 (Accordion Increase in Commitments).
"Compliance Certificate"
means a certificate substantially in the form set out in Schedule 12 (Form of Compliance Certificate), with any amendments
which the Facility Agent and the Company may agree.
"Compounded Rate Currency"
means any currency which is not a Term Rate Currency.
"Compounded Rate Interest
Payment" means the aggregate amount of interest that:
| (a) | is, or is scheduled to become, payable under any Finance Document; and |
| (b) | relates to a Compounded Rate Loan. |
"Compounded Rate Loan"
means any Loan or, if applicable, Unpaid Sum which is not a Term Rate Loan.
"Compounded Reference
Rate" means, in relation to any RFR Banking Day during the Interest Period of a Compounded Rate Loan, the percentage rate
per annum which is the aggregate of:
| (a) | the Daily Non-Cumulative Compounded RFR Rate for that RFR Banking Day; and |
| (b) | the applicable Baseline CAS or Fallback CAS (if any). |
"Compounding Methodology
Supplement" means, in relation to the Daily Non-Cumulative Compounded RFR Rate, a document which:
| (a) | is agreed in writing by the Company, the Facility Agent (in its own capacity) and the Facility Agent (acting on the instructions of
the Majority Lenders); |
| (b) | specifies a calculation methodology for that rate; and |
| (c) | has been made available to the Company and each Finance Party. |
"Confidential Information"
means all information relating to the Company, any Guarantor, the Group, the Finance Documents or the Facility of which a Finance Party
becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation
to, or for the purpose of becoming a Finance Party under, the Finance Documents or the Facility from either:
| (a) | any member of the Group or any of its advisers; or |
| (b) | another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or
any of its advisers, |
in whatever form, and includes information given orally and
any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such
information but excludes:
| (A) | is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 36 (Confidential
Information); |
| (B) | is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or |
| (C) | is known by that Finance Party before the date the information is disclosed to it in accordance with paragraph (a) or (b) above
or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected
with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise
subject to, any obligation of confidentiality; and |
"Confidentiality Undertaking"
means, at any time, a confidentiality undertaking substantially in the then current recommended form of the Loan Market Association
or in any other form agreed between the Company and the Facility Agent.
"Consolidated Structured
Entities" means where a member of the Group has invested seed capital and, under GAAP, the funds have been consolidated.
"CTA"
means the Corporation Tax Act 2009.
"Daily Non-Cumulative
Compounded RFR Rate" means, in relation to any RFR Banking Day during an Interest Period for a Compounded Rate Loan, the
percentage rate per annum determined by the Facility Agent (or by any other Finance Party which agrees to determine that rate in place
of the Facility Agent) in accordance with the methodology set out in Schedule 11 (Daily Non-Cumulative Compounded RFR Rate) or in
any relevant Compounding Methodology Supplement.
"Daily Rate"
means the rate specified as such in the applicable Reference Rate Terms.
"Declared Default"
means an Event of Default in respect of which a notice has been served by the Facility Agent pursuant to clause 23.17 (Acceleration).
"Default"
means:
| (a) | an Event of Default; or |
| (b) | an event or circumstance specified in Clause 23 (Events of Default) which would (with the expiry of a grace period, the giving
of notice, the making of any determination under the Finance Documents or any combination of any of them) be an Event of Default. |
"Defaulting Lender"
means any Lender:
| (a) | which has failed to make its share in a Loan available or has given notice to the Facility Agent or the Company (which has notified
the Facility Agent) that it will not make available its share in any Loan by the relevant Utilisation Date in accordance with this Agreement;
or |
| (b) | which has rescinded or repudiated a Finance Document; |
unless, in the case of paragraph (a) above:
| (i) | its failure to pay is caused by: |
| (A) | administrative or technical error; or |
| (B) | a Disruption Event, and |
payment is made within five Business Days of its due date;
or
| (ii) | the Lender is disputing in good faith whether it is contractually obliged to make the relevant payment. |
"Disruption Event"
means either or both of:
| (a) | a material disruption to the payment or communications systems or to the 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), provided that the disruption is not caused by, and is beyond the control of, any of the Parties; or |
| (b) | the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments
operations of a Party preventing that, or any other Party: |
| (i) | from performing its payment obligations under the Finance Documents; or |
| (ii) | from communicating with other Parties in accordance with the terms of the Finance Documents, |
and which (in either case) is not caused by, and is beyond
the control of, the Party whose operations are disrupted.
"Employee Plan"
means an employee pension benefit plan within the meaning of Section 3(2) of ERISA (other than a Multiemployer Plan) subject
to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which an Obligor
or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4062 of ERISA be deemed to be) an "employer"
as defined in Section 3(5) of ERISA.
"ERISA" means,
at any date, the United States Employee Retirement Income Security Act of 1974 (or any successor legislation thereto) as amended from
time to time, and the regulations promulgated and rulings issued thereunder, all as the same may be in effect at such date.
"ERISA Affiliate"
means any person that for purposes of Title I and Title IV of ERISA and Section 412 of the Code would be deemed at any
relevant time to be a single employer with an Obligor, pursuant to Section 414(b), (c), (m) or (o) of the Code or Section 4001
of ERISA.
"ERISA Event"
means:
| (a) | any reportable event, as defined in Section 4043 of ERISA, with respect to an Employee Plan, as to which PBGC has not by regulation
waived the requirement of Section 4043(a) of ERISA that it be notified of such event; |
| (b) | the filing of a notice of intent to terminate any Employee Plan, if such termination would require material additional contributions
in order to be considered a standard termination within the meaning of Section 4041(b) of ERISA, or the filing under Section 4041(c) of
ERISA of a notice of intent to terminate any Employee Plan or the termination of any Employee Plan under Section 4041(c) of
ERISA; |
| (c) | the institution of proceedings under Section 4042 of ERISA by the PBGC for the termination of, or the appointment of a trustee
to administer, any Employee Plan; |
| (d) | any failure by any Employee Plan to satisfy the minimum funding requirements of Sections 412 and 430 of the Code or Section 302
of ERISA applicable to such Employee Plan, in each case whether or not waived; |
| (e) | the failure to make a required contribution under Section 412 or 430 of the Code to any Employee Plan that would result in the
imposition of an encumbrance or at any time prior to date hereof, a filing under Section 412 of the Code or Section 302 of ERISA
of any request for a minimum funding variance with respect to any Employee Plan or Multiemployer Plan; |
| (f) | an engagement in a non-exempt prohibited transaction within the meaning of Section 4975 of the Code or Section 406 of ERISA
with respect to any Employee Plan; |
| (g) | the complete or partial withdrawal of any Obligor or any ERISA Affiliate from a Multiemployer Plan; |
| (h) | an Obligor or an ERISA Affiliate incurring any liability under Title IV of ERISA with respect to any Employee Plan (other than premiums
due and not delinquent under Section 4007 of ERISA); and |
| (i) | a determination that any Employee Plan is, or is expected to be, in "at risk" status (as defined in Section 303(i)(4) of
ERISA or Section 430(i)(4) of the Code). |
"euro",
"EUR" and "€" mean the single currency of the Participating Member States.
"Event of Default"
means any event or circumstance specified as such in Clause 23 (Events of Default).
"Executive Order"
means Executive Order No. 13224 on Terrorist Financings – Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten To Commit, or Support Terrorism issued on 23 September 2001.
"Facility" means
the revolving credit 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 Facility 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.
"Fallback CAS"
means, in relation to any Loan in a Term Rate Currency which becomes a "Compounded Rate Loan" for its then current Interest
Period pursuant to Clause 11.1 (Interest calculation if no Primary Term Rate), any rate which is either:
| (a) | specified as such in the applicable Reference Rate Terms; or |
| (b) | determined by the Facility Agent (or by any other Finance Party which agrees to determine that rate in place of the Facility Agent)
in accordance with the methodology specified in the applicable Reference Rate Terms. |
"Fallback Interest
Period" means, in relation to a Term Rate Loan, the period specified as such in the applicable Reference Rate Terms.
"FATCA"
means:
| (a) | sections 1471 to 1474 of the Code or any associated regulations; |
| (b) | any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the U.S. and any other
jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above;
or |
| (c) | any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraph (a) or (b) above
with the U.S. Internal Revenue Service, the U.S. government or any governmental or taxation authority in any other jurisdiction. |
"FATCA Application
Date" means:
| (a) | in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of
interest and certain other payments from sources within the U.S.), 1 July 2014; or |
| (b) | in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraph (a) above,
the first date from which such payment may become subject to a deduction or withholding required by FATCA. |
"FATCA Deduction"
means a deduction or withholding from a payment under a Finance Document required by FATCA.
"FATCA Exempt Party"
means a Party that is entitled to receive payments free from any FATCA Deduction.
"Fee Letter"
means any letter entered into by reference to this Agreement between one or more Administrative Parties and the Company setting out the
amount of any fees referred to in this Agreement.
"Finance Document"
means:
| (e) | any Reference Rate Supplement; |
| (f) | any Compounding Methodology Supplement; and |
| (g) | any other document designated as such by the Facility Agent and the Company. |
"Finance Lease"
means any lease, hire purchase contract or other agreement which would, in accordance with GAAP in force on the Signing Date,
be treated as a balance sheet liability.
"Finance Party"
means a Lender or an Administrative Party.
"Financial Indebtedness"
means any indebtedness for or in respect of:
| (b) | any acceptance under any acceptance credit facility (including any dematerialised equivalent); |
| (c) | any note purchase facility or the issue of bonds (but not Trade Instruments), notes, debentures, loan stock or any similar instrument; |
| (e) | receivables sold or discounted (other than any receivables to the extent they are sold or discounted on a non-recourse basis); |
| (f) | for the purposes of Clause 23.6 (Cross-default) only, any derivative transaction entered into 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 (or, if any actual amount is due as a result of the termination or close-out of that derivative transaction, that amount)
will be taken into account); |
| (g) | 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 (other than in respect of any performance bonds or advance payment bonds issued in
respect of obligations of any member of the Group arising in the ordinary course of trading); |
| (h) | any other transaction (including any forward sale or purchase agreement) of a type not referred to in any other paragraph of this
definition having the commercial effect of a borrowing; or |
| (i) | any guarantee, indemnity or similar assurance against financial loss of any person in respect of any item referred to in paragraphs
(a) to (h) above, |
but excluding any (i) indebtedness owing by a member
of the Group to another member of the Group; and (ii) indebtedness owing by any members of the Group which are Consolidated Structured
Entities.
“Fitch” means Fitch Ratings Limited or
any successor to its ratings business.
"Funding Rate"
means any individual rate notified by a Lender to the Facility Agent pursuant to Clause 11.4.1(B) (Cost of funds).
"GAAP"
means the generally accepted accounting principles in the U.S..
"Group" means
the Company and its Subsidiaries for the time being.
"Guarantor" means
an Original Guarantor or an Additional Guarantor which, in each case, has not ceased to be a Guarantor in accordance with Clause 25 (Changes
to the Obligors).
"Historic Primary Term
Rate" means, in relation to any Term Rate Loan, the most recent applicable Primary Term Rate for a period equal in length
to the Interest Period of that Loan and which is as of a day which is no more than three days before the Quotation Day.
"Holding Company"
means, in relation to a person, any other person in respect of which it is a Subsidiary
"IFRS"
means international accounting standards within the meaning of the IAS Regulation 1606/2002 to the extent applicable to the relevant financial
statements.
"Impaired Agent"
means the Facility Agent at any time when:
| (a) | it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents
by the due date for payment; |
| (b) | it rescinds or repudiates a Finance Document, |
| (c) | (if the Facility Agent is also a Lender) it is a Defaulting Lender under paragraph (a) or (b) of the definition of
Defaulting Lender; or |
| (d) | an Insolvency Event has occurred and is continuing with respect to the Facility Agent; |
unless, in the case of paragraph (a) above:
| (i) | its failure to pay is caused by: |
| (A) | administrative or technical error; or |
| (B) | a Disruption Event, and |
payment is made within five Business Days of its due date;
or
| (ii) | the Facility Agent is disputing in good faith whether it is contractually obliged to make the relevant payment. |
"Increase Confirmation"
means a confirmation substantially in the form set out in Schedule 9 (Form of Increase Confirmation) or any
other form agreed between the Company and the Facility Agent.
"Increased Costs"
has the meaning given to it in Clause 14 (Increased Costs).
"Increase Lender"
has the meaning given to it in Clause 2.3 (Increase).
"Information Memorandum"
means the information memorandum prepared on behalf of, and approved by, the Company in connection with this Agreement.
"Insolvency Event"
in relation to a Finance Party means that the Finance Party:
| (a) | is dissolved (other than as a result of a consolidation, amalgamation or merger); |
| (b) | becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become
due; |
| (c) | makes a general assignment, arrangement or composition with or for the benefit of its creditors; |
| (d) | institutes or has instituted against it, by a regulator, supervisor or similar official with primary insolvency, rehabilitative or
regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office,
a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under bankruptcy or insolvency law or other similar law
affecting creditors' rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar
official; |
| (e) | has instituted against it a proceeding seeking judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency
law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation and, in the case of
any such proceeding or petition presented against it, that proceeding or petition is instituted or presented by a person or an entity
not described in paragraph (d) above and: |
| (i) | results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up
or liquidation; or |
| (ii) | is not dismissed, discharged, stayed or restrained in each case within 30 days of its institution or presentation; |
| (f) | has a resolution passed for its winding-up, official management or liquidation (other than as a result of a consolidation, amalgamation
or merger); |
| (g) | seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian
or other similar official for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation
not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in paragraph (d) above); |
| (h) | has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration
or other legal process levied, enforced or sued on or against all or substantially all its assets and that secured party maintains possession,
or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days of it; |
| (i) | causes or is subject to any event which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events
specified in paragraphs (a) to (h) (inclusive) above; or |
| (j) | takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence, in any of the acts referred to above. |
"Interest Period"
means each period determined under this Agreement by reference to which interest on a Loan or an Unpaid Sum is calculated.
"Interpolated Alternative
Term Rate" means, in relation to any Term Rate Loan, the rate (rounded to the same number of decimal places as the two
relevant Alternative Term Rates) which results from interpolating on a linear basis between:
| (a) | the applicable Alternative Term Rate for the longest period (for which that Alternative Term Rate is available) which is less than
the Interest Period of that Loan; and |
| (b) | the applicable Alternative Term Rate for the shortest period (for which that Alternative Term Rate is available) which exceeds the
Interest Period of that Loan, |
each as of the Quotation Time.
"Interpolated Historic
Primary Term Rate" means, in relation to any Term Rate Loan, the rate (rounded to the same number of decimal places as
the two relevant Primary Term Rates) which results from interpolating on a linear basis between:
| (a) | the most recent applicable Primary Term Rate for the longest period (for which that Primary Term Rate is available) which is less
than the Interest Period of that Loan; and |
| (b) | the most recent applicable Primary Term Rate for the shortest period (for which that Primary Term Rate is available) which exceeds
the Interest Period of that Loan, |
each of which is as of a day which is no more than three
days before the Quotation Day.
"Interpolated Primary
Term Rate" means, in relation to any Term Rate Loan, the rate (rounded to the same number of decimal places as the two
relevant Primary Term Rates) which results from interpolating on a linear basis between:
| (a) | the applicable Primary Term Rate for the longest period (for which that Primary Term Rate is available) which is less than the Interest
Period of that Loan; and |
| (b) | the applicable Primary Term Rate for the shortest period (for which that Primary Term Rate is available) which exceeds the Interest
Period of that Loan, |
each as of the Quotation Time.
"ITA" means
the Income Tax Act 2007.
“Legal Reservations”
means:
| (a) | the principle that equitable remedies may be granted or refused at the discretion of a court, the limitation of enforcement by laws
relating to insolvency, reorganisation and other laws generally affecting the rights of creditors; |
| (b) | the time barring of claims under applicable limitation laws, the possibility that an undertaking to assume liability for or indemnify
a person against non-payment of UK stamp duty may be void and defences of set off or counterclaim; |
| (c) | the principle that any additional interest and/or any prepayment fee imposed under any relevant agreement may be held to be unenforceable
on the grounds that it is a penalty and thus void; |
| (d) | the principle that the courts of England may not give effect to an indemnity for legal costs incurred by an unsuccessful litigant; |
| (e) | similar principles, rights and defences under the laws of any applicable jurisdiction which are similar to those in paragraphs (a) to
(d) above; and |
| (f) | any general principles of law limiting its obligations which are specifically referred to in any legal opinion delivered under this
Agreement |
"Lender"
means:
| (a) | an Original Lender; or |
| (b) | any bank or financial institution which has become a Lender in accordance with Clause 2.3 (Increase), Clause 2.4 (Accordion
Increase in Commitments) or a Party in accordance with Clause 24 (Changes to the Lenders), |
which, in each case, has not ceased to be a Party in accordance
with the terms of this Agreement.
"Loan" means
a loan made or to be made under the Facility or the principal amount outstanding for the time being of that loan.
"Lookback Period"
means the number of days specified as such in the applicable Reference Rate Terms.
"Majority Lenders"
means, at any time, a Lender or Lenders:
| (a) | whose participation in the outstanding Loans and whose Available Commitments then aggregate 66 2/3% or more of the aggregate of all
the outstanding Loans and the Available Commitments of all the Lenders; |
| (b) | if there is no Loan then outstanding, whose Commitments then aggregate 66 2/3% or more of the Total Commitments; or |
| (c) | if there is no Loan then outstanding and the Total Commitments have been reduced to zero, whose Commitments aggregated 66 2/3% or
more of the Total Commitments immediately before the reduction. |
"Margin"
means the percentage rate per annum calculated in accordance with Clause 9.4 (Margin adjustments).
"Margin Regulations"
means Regulations U and X issued by the Board of Governors of the United States Federal Reserve System.
"Margin Stock"
means "margin stock" as defined in Regulation U of the Margin Regulations.
"Market Disruption
Rate" means the rate (if any) specified as such in the applicable Reference Rate Terms.
"Material Adverse Effect"
means a material adverse effect on:
| (a) | the business, assets or financial condition of the Group as a whole; |
| (b) | the ability of the Group as a whole to perform its payment obligations under any Finance Document; or |
| (c) | subject to the Legal Reservations, the validity or enforceability of any Finance Document. |
"Material Subsidiary"
means, at any time, a Subsidiary of the Company if the revenue or net assets (excluding any intra-Group transactions or balances) of that
Subsidiary then represent 10% or more of the total revenue or total net assets (excluding any intra-Group transactions or balances) of
the Group.
For this purpose:
| (a) | subject to paragraph (b) below: |
| (i) | the contribution of a Subsidiary of the Company will be determined from its financial statements which were consolidated into the
latest audited consolidated financial statements of the Company; and |
| (ii) | the financial condition of the Group will be determined from the latest audited consolidated financial statements of the Company; |
| (b) | if a Subsidiary of the Company becomes a member of the Group after the date on which the latest audited consolidated financial statements
of the Company were prepared: |
| (i) | the contribution of the Subsidiary will be determined from its latest financial statements; and |
| (ii) | the financial condition of the Group will be determined from the latest audited consolidated financial statements of the Company but
adjusted to take into account any subsequent acquisition or disposal of a business or a company (including that Subsidiary); |
| (c) | if a Material Subsidiary disposes of all or substantially all of its assets to another member of the Group, it will immediately cease
to be a Material Subsidiary (provided it no longer satisfies the definition of Material Subsidiary as a result of such disposal) and the
other member of the Group (if it is not the Company or already a Material Subsidiary) will immediately become a Material Subsidiary (provided
it satisfies the definition of Material Subsidiary as a result of such disposal); |
| (d) | a Subsidiary of the Company (if it is not already a Material Subsidiary) will become a Material Subsidiary on completion of any other
intra-Group transfer or reorganisation if it would have been a Material Subsidiary had the intra-Group transfer or reorganisation occurred
on the date of the latest audited consolidated financial statements of the Company; and |
| (e) | except as specifically mentioned in paragraph (a), a member of the Group will remain a Material Subsidiary until the next audited
consolidated financial statements of the Company show otherwise. |
If there is a dispute as to whether or not a member of the
Group is a Material Subsidiary, a certificate of the Company's auditors is, in the absence of manifest error, conclusive.
"Month" means,
in relation to an Interest Period (or any other period for the accrual of commission or fees in a currency), a period starting on one
day in a calendar month and ending on the numerically corresponding day in the next calendar month, subject to adjustment in accordance
with the rules specified as Business Day Conventions in the applicable Reference Rate Terms.
"Moody's" means
Moody's Investors Service Limited or any successor to its ratings business.
"Multiemployer Plan"
means a "multiemployer plan" (as defined in Section 3(37) of ERISA) that is subject to Title IV of ERISA contributed to
for any employees of an Obligor or any ERISA Affiliate.
"New Lender"
has the meaning given to it in Clause 24 (Changes to the Lenders).
"Obligor "means
the Company or a Guarantor.
"Optional Currency"
means a currency (other than the Base Currency) which satisfies the conditions in Clause 6.2.1 (Conditions relating to Optional Currencies).
"Original Financial
Statements" means in relation to the Company, the audited consolidated financial statements of the Group for the financial
year ended 31 December 2022.
"Original Obligor"
means the Company or the Original Guarantor.
"Participating Member
State" means any member state of the European Union that has the euro as its lawful currency in accordance with legislation
of the European Union relating to Economic and Monetary Union.
"Party" means
a party to this Agreement.
"Patriot Act"
means the USA Patriot Act (Title III of Pub. L. 107-56, signed into law on 26 October 2001).
"PBGC"
means the US Pension Benefit Guaranty Corporation, or any entity succeeding to all or any of its functions under ERISA.
"Primary Term Rate"
means the rate specified as such in the applicable Reference Rate Terms.
"Pro Rata Share"
means, at any time:
| (a) | for the purpose of determining a Lender's participation in a Utilisation, the proportion which its Available Commitment then bears
to the Available Facility; and |
| (b) | for any other purpose: |
| (i) | the proportion which a Lender's participation in the Loans then bears to all the Loans; |
| (ii) | if there is no Loan then outstanding, the proportion which its Commitment then bears to the Total Commitments; or |
| (iii) | if there is no Loan then outstanding and the Total Commitments have been reduced to zero, the proportion which its Commitment bore
to the Total Commitments immediately before the reduction. |
"Qualifying Lender"
has the meaning given to it in Clause 13 (Tax gross-up and indemnities).
"Quotation Day"
means the day specified as such in the applicable Reference Rate Terms.
"Quotation Time"
means the relevant time (if any) specified as such in the applicable Reference Rate Terms.
"Quoted Tenor"
means, in relation to a Primary Term Rate or an Alternative Term Rate, any period for which that rate is customarily displayed on the
relevant page or screen of an information service.
"Reference Rate Supplement"
means, in relation to any currency, a document which:
| (a) | is agreed in writing by the Company, the Facility Agent (in its own capacity) and the Facility Agent (acting on the instructions of
the Majority Lenders); |
| (b) | specifies for that currency the relevant terms which are expressed in this Agreement to be determined by reference to Reference Rate
Terms; |
| (c) | specifies whether that currency is a Compounded Rate Currency or a Term Rate Currency; and |
| (d) | has been made available to the Company and each Finance Party. |
"Reference Rate Terms"
means, in relation to:
| (b) | a Loan or an Unpaid Sum in that currency; |
| (c) | an Interest Period for that Loan or Unpaid Sum (or other period for the accrual of commission or fees in a currency); or |
| (d) | any term of this Agreement relating to the determination of a rate of interest in relation to such a Loan or Unpaid Sum, |
the terms set out for that currency, and (where such terms
are set out for different categories of Loan, Unpaid Sum or accrual of commission or fees in that currency) for the category of that Loan,
Unpaid Sum or accrual, in Schedule 10 (Reference Rate Terms) or in any Reference Rate Supplement.
"Related Fund"
in relation to a fund (the "first fund"), means:
| (a) | a fund which is managed or advised by the same investment manager or investment adviser as the first fund; or |
| (b) | if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is
an Affiliate of the investment manager or investment adviser of the first fund. |
"Relevant Long-term
Credit Rating" has the meaning given to it in Clause 9.4.3 (Margin adjustments).
"Relevant Market"
means the market specified as such in the applicable Reference Rate Terms.
"Repeating Representations"
means each of the representations and warranties set out in Clauses 19.2 (Status) to 19.7 (Governing law and enforcement),
Clause 19.10.1 (No default), Clause 19.11.3 (No misleading information), Clause 19.12.1 (Financial statements) and
Clauses 19.15 (Anti-Corruption laws, Anti-Money Laundering laws, sanctions and Patriot Act) to 19.18 (Margin Regulations).
"Reporting Day"
means the day (if any) specified as such in the applicable Reference Rate Terms.
"Reporting Time"
means the relevant time (if any) specified as such in the applicable Reference Rate Terms.
"Representative"
means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.
"Resignation Letter"
means a resignation letter substantially in the form set out in Schedule 8 (Form of Resignation Letter), with any amendments
the Facility Agent and the Company may agree.
"RFR"
means the rate specified as such in the applicable Reference Rate Terms.
"RFR Banking Day"
means any day specified as such in the applicable Reference Rate Terms.
"Rollover Loan"
means one or more Loans:
| (a) | made or to be made on the same day that a maturing Loan is due to be repaid; |
| (b) | the aggregate amount of which is equal to or less than the amount of the maturing Loan; |
| (c) | in the same currency as the maturing Loan (unless it arose as a result of the operation of Clause 6.3 (Unavailability of a currency
for a Loan)); and |
| (d) | made or to be made for the purpose of refinancing the maturing Loan. |
"S&P"
means S&P Global Ratings, a division of S&P Global Inc. or any successor to its ratings business.
"Sanctioned Person"
means any person who (a) is named on the list of Specially Designated Nationals or Blocked Persons maintained by the U.S. Department
of the Treasury's Office of Foreign Asset Controls and/or any other similar lists maintained by the U.S. Department of the Treasury's
Office of Foreign Asset Controls pursuant to authorising statute, executive order or regulation, (b) is named on a list maintained
by the United Nations Security Council, the European Union or His Majesty's Treasury of the United Kingdom, (c) is a person whose
property or interest in property is blocked or subject to blocking pursuant to Section 1 of the Executive Order or any related legislation
or any other similar executive order or (d), (i) is an agency of the government of a country, (ii) an organisation controlled
by a country or (iii) a person resident in, located within, or operating from a country that is subject to a general export, import,
financial or investment embargo under Sanctions, as such programme may be applicable to such agency, organisation or person.
"Sanctions"
means the economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S.
Government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department
of State or (b) the United Nations Security Council, the European Union or His Majesty's Treasury of the United Kingdom.
"Sanctions Event"
means:
| (a) | an Obligor does not comply with Clause 22.11.1 (Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions) in relation
to Sanctions, Clause 22.11.2(B) or Clause 22.11.2(C); or |
| (b) | the representation and warranty made or deemed to be made by an Obligor under Clause 19.15.2 or 19.15.3 (Anti-Corruption laws,
Anti-Money Laundering laws, sanctions and Patriot Act) in relation to Sanctions is or proves to have been incorrect or misleading. |
"Security Interest"
means a mortgage, charge, pledge, lien, assignment by way of security, hypothecation or other security interest securing any obligation
of any person or any other agreement or arrangement having a similar effect.
"Separate Loan"
has the meaning given to that term in Clause 7 (Repayment).
"Signing Date"
means the date of this Agreement.
"Specified Time"
means a day or time determined in accordance with Schedule 14 (Timetables).
"Subsidiary"
means an entity of which a person has direct or indirect control or owns directly or indirectly more than 50% of the voting capital or
similar right of ownership and "control" for this purpose means the power to direct the management and the policies of
the entity whether through the ownership of voting capital, by contract or otherwise.
"T2" means
the real time gross settlement system operated by the Eurosystem, or any successor system.
"TARGET Day"
means any day on which T2 is open for the settlement of payments in euro.
"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 them).
"Tax Deduction"
means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction.
"Tax Payment"
means either an increase in a payment made by an Obligor to a Finance Party under Clause 13.2 (Tax gross-up) or a payment under
Clause 13.3 (Tax indemnity).
"Termination Date"
means, subject to Clause 2.5 (Extension), the date falling five years after the Signing Date.
"Term Rate Currency"
means:
| (c) | any other currency specified as such in a Reference Rate Supplement relating to that currency, |
to the extent, in any case, not specified otherwise in a
subsequent Reference Rate Supplement.
"Term Rate Loan"
means any Loan or, if applicable, Unpaid Sum in a Term Rate Currency to the extent that it is not, or has not become, a "Compounded
Rate Loan" for its then current Interest Period pursuant to Clause 11.1 (Interest calculation if no Primary Term Rate).
"Term Reference Rate"
means, in relation to a Term Rate Loan:
| (a) | the applicable Primary Term Rate as of the Quotation Time for a period equal in length to the Interest Period of that Loan; or |
| (b) | as otherwise determined pursuant to Clause 11.1 (Interest calculation if no Primary Term Rate), |
and if, in either case, that rate is less than zero, the
Term Reference Rate shall be deemed to be zero.
"Third Parties Act"
means the Contracts (Rights of Third Parties) Act 1999.
"Total Commitments"
means the aggregate of the Commitments, being USD200,000,000 at the Signing Date, and subject to any increase under Clause 2.4 (Accordion
Increase in Commitments).
"Trade Instruments"
means any performance bonds or advance payment bonds issued in respect of the obligations of any member of the Group arising in the ordinary
course of trading of that member of the Group.
"Transfer Certificate"
means a certificate substantially in the form set out in Schedule 5 (Form of Transfer Certificate), with any amendments
the Facility Agent may approve or reasonably require, or any other form agreed between the Facility Agent and the Company.
"Transfer Date"
means, in relation to an assignment or a transfer, the later of:
| (a) | the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and |
| (b) | the date on which the Facility Agent executes the relevant Assignment Agreement or Transfer Certificate. |
"UK"
means the United Kingdom of Great Britain and Northern Ireland.
"Unpaid Sum" means
any sum due and payable but unpaid by an Obligor under the Finance Documents.
"U.S."
means the United States of America.
"U.S. Debtor"
means an Obligor that is incorporated or organized under the laws of the United States of America or any State of the United States of
America (including the District of Columbia) or that has a place of business or property in the United States of America.
"U.S. Tax Obligor"
means:
| (a) | the Company to the extent it is resident for tax purposes in the U.S.; or |
| (b) | an Obligor some or all of whose payments under the Finance Documents are from sources within the U.S. for U.S. federal income tax
purposes. |
"Utilisation"
means a utilisation of the Facility.
"Utilisation Date"
means the date of a Utilisation, being the date on which the relevant Loan is or is to be made.
"Utilisation Request"
means a notice substantially in the form set out in Schedule 3 (Form of Utilisation Request).
"VAT"
means:
| (a) | any value added tax imposed by the Value Added Tax Act 1994; |
| (b) | any Tax imposed in compliance with Council Directive of 28 November 2006 on the common system of value added tax (EC Directive
2006/112); and |
| (c) | any other Tax of a similar nature whether imposed in the United Kingdom or a member state of the European Union in substitution for,
or levied in addition to, such Tax referred to in paragraphs (a) or (b) above, or imposed elsewhere. |
| 1.2.1 | Unless this Agreement expressly provides to the contrary, any reference in this Agreement to: |
| (A) | a Party or any other person includes its successors in title, permitted assigns and permitted transferees to, or of, all or any combination
of its rights and obligations under the Finance Documents; |
| (B) | an "amendment" includes a supplement, novation, extension (whether of maturity or otherwise), restatement, re-enactment
or replacement (however fundamental and whether or not more onerous) and "amended" will be construed accordingly; |
| (C) | a Lender's "cost of funds" in relation to its participation in a Loan is a reference to the average cost (determined
either on an actual or a notional basis) which that Lender would incur if it were to fund, from whatever source(s) it may reasonably
select, an amount equal to the amount of that participation in that Loan for a period equal in length to the Interest Period of that Loan; |
| (D) | "assets" includes present and future properties, revenues and rights of every description; |
| (E) | "disposal" includes a sale, transfer, assignment, grant, lease, licence, declaration of trust or other disposal,
whether voluntary or involuntary, and "dispose" will be construed accordingly; |
| (F) | a "Finance Document" or any other agreement or instrument includes (without prejudice to any restriction on amendments)
any amendment to that Finance Document or other agreement or instrument, including any change in the purpose of, any extension of or any
increase in the amount of a facility or any additional facility; |
| (G) | a "group of Lenders" includes all the Lenders and a "group of Finance Parties" includes all the
Finance Parties; |
| (H) | "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; |
| (I) | ""know your customer" checks" is to the identification checks that a Finance Party requests to meet its
obligations under any applicable law or regulation to identify a person who is (or is to become) its customer; |
| (J) | a "person" includes any individual, firm, company, corporation, government, state or agency of a state or any association
or body (including a partnership, trust, fund, joint venture or consortium), or any other entity (whether or not having separate legal
personality); |
| (K) | a "regulation" includes any regulation, rule, official directive, request or guideline (whether or not having the
force of law but, if not having the force of law, being of a type with which a person to which it applies is generally accustomed to comply)
of any governmental, inter-governmental or supranational body, agency or department, or of any regulatory, self-regulatory or other authority
or organisation; |
| (L) | a currency is a reference to the lawful currency for the time being of the relevant country; |
| (M) | a provision of law is a reference to that provision as amended and includes any subordinate legislation; and |
| (N) | a time of day is a reference to London time. |
| 1.2.2 | The determination of the extent to which a rate is "for a period equal in length" to an Interest Period will disregard
any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement. |
| 1.2.3 | A Clause or a Schedule is a reference to a clause of or a schedule to this Agreement. |
| 1.2.4 | The headings in this Agreement are for ease of reference only and do not affect its interpretation. |
| 1.2.5 | Unless this Agreement expressly provides to the contrary: |
| (A) | 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; |
| (B) | a Default or Event of Default is "continuing" if it has not been remedied or waived and a Declared Default is "continuing"
unless the relevant demand or notice has been revoked by the Facility Agent; and |
| (C) | any obligation of an Obligor under the Finance Documents which is not a payment obligation remains in force for so long as any payment
obligation of any Obligor is outstanding or any Commitment is in force under the Finance Documents. |
| 1.2.6 | Any reference within a Clause to "this Clause" means the entirety of that Clause. |
| 1.2.7 | A reference in this Agreement to a page or screen of an information service displaying a rate shall include: |
| (A) | any replacement page of that information service which displays that rate; and |
| (B) | the appropriate page of such other information service which displays that rate from time to time in place of that information
service, |
and, if such page or service ceases to be available, shall
include any other page or service displaying that rate specified by the Facility Agent after consultation with the Company.
| 1.2.8 | A reference in this Agreement to a Central Bank Rate shall include any successor rate to, or replacement rate for, that rate. |
| 1.2.9 | Any Reference Rate Supplement relating to a currency overrides anything relating to that currency in: |
| (A) | Schedule 10 (Reference Rate Terms); or |
| (B) | any earlier Reference Rate Supplement. |
| 1.2.10 | A Compounding Methodology Supplement relating to the Daily Non-Cumulative Compounded RFR Rate overrides anything relating to that
rate in: |
| (A) | Schedule 11 (Daily Non-Cumulative Compounded RFR Rate); or |
| (B) | any earlier Compounding Methodology Supplement. |
| 1.2.11 | The determination of the extent to which a rate is "for a period equal in length" to an Interest Period shall disregard
any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement. |
| 1.2.12 | For all purposes under the Finance Documents in connection with any division or plan of division under Delaware law (or any comparable
event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any person becomes the asset,
right, obligation or liability of a different person, then it shall be deemed to have been transferred from the original person to the
subsequent person, and (b) if any new person comes into existence, such new person shall be deemed to have been organized on the
first date of its existence by the holders of its equity interests at such time. |
| 1.3.1 | "Unless expressly provided to the contrary in a Finance Document, a person who is not a Party has no right under the Third Parties
Act to enforce or to enjoy the benefit of any term of this Agreement. |
| 1.3.2 | Notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary
this Agreement at any time. |
Subject to the terms of this Agreement, the Lenders make
available to the Company a revolving loan facility in an aggregate amount equal to the Total Commitments.
| 2.2 | Finance Parties' rights and obligations |
| 2.2.1 | The obligations of each Finance Party under the Finance Documents are several. |
| 2.2.2 | 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. |
| 2.2.3 | No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents. |
| 2.2.4 | The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and they include
the right to repayment of any debt owing to that Finance Party under the Finance Documents. |
| 2.2.5 | Any debt arising under the Finance Documents to a Finance Party is a separate and independent debt. Any part of a Loan or any other
amount owed by an Obligor which relates to a Finance Party's participation in the Facility or its role under a Finance Document is a debt
owing to that Finance Party by that Obligor (including if it is payable to the Facility Agent on that Finance Party's behalf). |
| 2.2.6 | A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection
with the Finance Documents. |
| 2.3.1 | The Company may by giving prior notice to the Facility Agent after the effective date of a cancellation of: |
| (A) | the Available Commitments of a Defaulting Lender in accordance with Clause 8.8 (Right of cancellation in relation to a Defaulting
Lender); or |
| (B) | the Commitments of a Lender in accordance with: |
| (1) | Clause 8.1 (Illegality); |
| (2) | Clause 8.3 (Sanctions Event); or |
| (3) | Clause 8.7.1 (Right of replacement or repayment and cancellation in relation to a single Lender), |
request that the Commitments be increased (and the Commitments
shall be so increased) in an aggregate amount in the Base Currency of up to the amount of the Available Commitments or Commitments so
cancelled as follows:
| (4) | the increased Commitments will be assumed by one or more banks or financial institutions (each an "Increase Lender")
and each of which confirms in writing (whether in the relevant Increase Confirmation or otherwise) its willingness to assume and does
assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been
an Original Lender; |
| (5) | each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another
as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender been an Original Lender; |
| (6) | each Increase Lender shall become a Party as a "Lender" and any Increase Lender and each of the other Finance Parties shall
assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties would
have assumed and/or acquired had the Increase Lender been an Original Lender; |
| (7) | the Commitments of the other Lenders shall continue in full force and effect; and |
| (8) | any increase in the Commitments shall take effect on the date specified by the Company in the notice referred to above or any later
date on which the conditions set out in Clause 2.3.2 are satisfied. |
| 2.3.2 | An increase in the Commitments will only be effective on: |
| (A) | the execution by the Facility Agent of an Increase Confirmation from the relevant Increase Lender; |
| (B) | in relation to an Increase Lender which is not a Lender immediately prior to the relevant increase, the Facility Agent being satisfied
that it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations
in relation to the assumption of the increased Commitments by that Increase Lender. The Facility Agent shall promptly notify the Company
and the Increase Lender upon being so satisfied. |
| 2.3.3 | Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Facility Agent has authority
to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance
with this Agreement on or prior to the date on which the increase becomes effective. |
| 2.3.4 | The Increase Lender shall, on the date upon which the increase takes effect, pay to the Facility Agent (for its own account) a fee
in an amount equal to the fee which would be payable under Clause 24.3 (Assignment, transfer and accordion accession fees) if the
increase was a transfer pursuant to Clause 24.5 (Procedure for transfer) and if the Increase Lender was a New Lender. |
| 2.3.5 | The Company may pay to the Increase Lender a fee in the amount and at the times agreed between the Company and the Increase Lender
in a Fee Letter. |
| 2.3.6 | Clause 24.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.3
in relation to an Increase Lender as if references in that Clause to: |
| (A) | an "Existing Lender" were references to all the Lenders immediately prior to the relevant increase; |
| (B) | the "New Lender" were references to that "Increase Lender"; and |
| (C) | a "re-transfer" and "re-assignment" were references to respectively a "transfer"
and "assignment". |
| 2.4 | Accordion Increase in Commitments |
| 2.4.1 | The Company may, by delivery to the Facility Agent of a written notice (each such notice being an "Accordion Request"),
request that the Total Commitments be increased (and the Total Commitments shall be so increased) (each such increase being an "Accordion
Increase") as described in, and in accordance with, this Clause 2.4. |
| 2.4.2 | Any increase in the Total Commitments requested in an Accordion Request shall be subject to the following conditions: |
| (A) | the Total Commitments, taking into account any Accordion Increase, will not exceed USD250,000,000 or such other larger amount agreed
to by all the Lenders; |
| (B) | the increased Commitments may, at the discretion of the Company, be assumed by one or more existing Lenders willing to provide such
increase and/or by other banks or financial institutions (each provider of the Accordion Increase being an "Accordion Lender")
selected by the Company which shall become a Party as a Lender; |
| (C) | the Facility Agent receives the Accordion Request no later than five days (or such shorter period as the Facility Agent and the Company
may agree) before the proposed Accordion Increase Date (as defined below); |
| (D) | the amount of each Accordion Increase (the "Accordion Increase Amount") shall be not less than USD10,000,000 (or
such other smaller amount agreed to by the Facility Agent); |
| (E) | no Event of Default is continuing or would result from the proposed Accordion Increase; |
| (F) | in respect of each Accordion Lender: |
| (1) | the Facility Agent has received and executed a duly completed Accordion Increase Confirmation from that Accordion Lender; and |
| (2) | in relation to an Accordion Lender which is not already a Lender on the date of the Accordion Increase Confirmation, the Facility
Agent has performed all necessary "know your customer" or other similar checks under all applicable laws and regulations in
relation to the assumption of the additional Commitments by that Accordion Lender, the completion of which the Facility Agent shall promptly
notify to the Company and the relevant Accordion Lender; and |
| (G) | the Accordion Lender(s) agree(s) to assume additional Commitments in an aggregate amount equal to the Accordion Increase
Amount. |
| 2.4.3 | The Accordion Increase will take effect on the date (the "Accordion Increase Date") which is the later of: |
| (A) | the date specified by the Company in the Accordion Request; and |
| (B) | the date on which all of the conditions described in Clause 2.4.2 have been met. |
| 2.4.4 | On and from the Accordion Increase Date: |
| (A) | the Total Commitments will be increased by the Accordion Increase Amount; |
| (B) | each Accordion Lender will assume all the obligations of a Lender in respect of the additional Commitments specified in the Accordion
Increase Confirmation of that Accordion Lender; |
| (C) | the Company and each Accordion Lender which is not a Lender immediately prior to the Accordion Increase Date shall assume obligations
towards one another and/or acquire rights against one another as the Company and the Accordion Lender would have assumed and/or acquired
had the Accordion Lender been an Original Lender; |
| (D) | each Accordion Lender which is not a Lender immediately prior to the Accordion Increase Date shall become a Party as a "Lender"
and each such Accordion Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against
one another as that Accordion Lender and those Finance Parties would have assumed and/or acquired had the Accordion Lender been an Original
Lender; |
| (E) | the Commitments of the other Lenders shall continue in full force and effect; and |
| (F) | the terms of this Agreement shall continue in full force and effect and, for the avoidance of doubt, the Margin applicable to the
Accordion Increase Amount shall be equal to the Margin which is payable in respect of the existing Commitments as at the Accordion Increase
Date and as adjusted in accordance with Clause 9.4 (Margin adjustments). |
| 2.4.5 | Each Accordion Lender, by executing the Accordion Increase Confirmation, confirms (for the avoidance of doubt) that the Facility Agent
has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders
in accordance with this Agreement on or prior to the date on which the increase becomes effective. |
| 2.4.6 | The Company shall, promptly after the Accordion Increase Date and provided the Facility Agent has informed the Company thereof, pay
to the Facility Agent (for its own account) a fee in an amount equal to the fee which would be payable under Clause 24.3 (Assignment,
transfer and accordion accession fees) and the Company shall promptly on demand pay to the Facility Agent the amount of all costs
and expenses (including legal fees) reasonably and properly incurred by it in connection with any increase in the Facility under this
Clause 2.4. |
| 2.4.7 | The Company may pay to an Accordion Lender a fee in the amount and at the times agreed between the Company and the Accordion Lender
in a letter between the Company and the Accordion Lender setting out that fee. A reference in this Agreement to a fee letter shall include
any letter referred to in this Clause 2.4.7. |
| 2.4.8 | No Lender shall be under any obligation to execute any Accordion Increase Confirmation. |
| 2.5.1 | The Company may by notice to the Facility Agent (the "Initial Extension Request") not more than 60 days and not less
than 30 days before the first anniversary of the Signing Date, request that the Termination Date be extended for a further period of one
year. |
| 2.5.2 | The Company may by notice to the Facility Agent (the "Second Extension Request") not more than 60 days and not less
than 30 days before the second anniversary of the Signing Date, request that the Termination Date: |
| (A) | with respect to Lenders who have agreed to the Initial Extension Request, be extended for a further period of one year; and/or |
| (B) | if no Initial Extension Request has been made, or with respect to Lenders who refused the Initial Extension Request: |
| (1) | be extended for a period of one year; or |
| (2) | be extended for a period of two years, |
as selected by the Company in the notice to the Facility
Agent.
| 2.5.3 | The Facility Agent must promptly notify the Lenders of any Initial Extension Request or Second Extension Request (an "Extension
Request"). |
| 2.5.4 | Each Lender may, in its sole discretion, agree to or refuse any Extension Request. Each Lender that agrees to an Extension Request
(an "Extending Lender") by the date falling 20 days before the relevant anniversary of the Signing Date, will extend
its Commitments for a further period of one year or two years, as applicable, from the then current Termination Date and the Termination
Date with respect to the Commitments of that Lender will be extended accordingly. |
| 2.5.5 | If any Lender fails to reply to an Extension Request on or before the date falling 20 days before the relevant anniversary of the
Signing Date, it will be deemed to have refused that Extension Request and its Commitments will not be extended. |
| 2.5.6 | If any Lender does not agree (or is deemed not to have agreed in accordance with Clause 2.5.5) to an Extension Request, the Termination
Date applicable to its Commitments shall remain that Termination Date which applied to those Commitments immediately prior to the service
of the relevant Extension Request and its participation in any outstanding Loan shall be repaid in accordance with Clause 7 (Repayment).
Subject to Clause 2.5.8, each Extension Request is irrevocable. |
| 2.5.7 | If one or more (but not all) of the Lenders agree to an Extension Request, then the Facility Agent must notify the Company and the
Extending Lenders, identifying in that notification which Lenders have not agreed to the Extension Request. |
| 2.5.8 | The Company may, on the basis that one or more of the Lenders have not agreed to the Extension Request and no later than the date
falling five days before the relevant anniversary of the Signing Date, withdraw the request by notice to the Facility Agent which will
promptly notify the Lenders. |
The Company must apply all amounts borrowed by it under the
Facility towards the general corporate purposes of the Group.
No Finance Party is bound to monitor or verify the application
of any utilisation of the Facility.
| 4. | Conditions of Utilisation |
| 4.1 | Initial conditions precedent |
| 4.1.1 | The Lenders will only be obliged to comply with Clause 5.4 (Lenders' participation) if the Facility Agent has received (or
waived receipt of) all of the documents and other evidence listed in Part A (Conditions Precedent to initial utilisation)
of Schedule 2 (Conditions precedent) in form and substance satisfactory to the Facility Agent. The Facility Agent must notify
the Company and the Lenders promptly on being so satisfied. |
| 4.1.2 | Except to the extent that the Majority Lenders notify the Facility Agent to the contrary before the Facility Agent gives the notification
described in Clause 4.1.1, each Lender authorises (but does not require) the Facility Agent to give that notification. The Facility Agent
will not be liable for any cost, loss or liability whatsoever any person incurs as a result of the Facility Agent giving any such notification. |
| 4.2 | Further conditions precedent |
| 4.2.1 | The Lenders will only be obliged to comply with Clause 5.4 (Lenders' participation) if on the date of the Utilisation Request
and on the proposed Utilisation Date: |
| (A) | in the case of a Rollover Loan, no Declared Default is continuing and, in the case of any other Loan, no Default is continuing or
would result from the proposed Loan; and |
| (B) | the Repeating Representations to be made by each Obligor are true in all material respects. |
| 4.2.2 | The Lenders will only be obliged to comply with Clause 29.10 (Change of currency) if, on the first day of an Interest Period,
no Default is continuing or would result from the change of currency and the Repeating Representations to be made by each Obligor are
true in all material respects. |
No Utilisation Request may be given if, as a result of the
proposed Utilisation more than 15 Loans would be outstanding. Any Separate Loan shall not be taken into account in this Clause 4.3.
| 5.1 | Delivery of a Utilisation Request |
The Company may borrow a Loan by delivery to the Facility
Agent of a duly completed Utilisation Request not later than the Specified Time.
| 5.2 | Completion of a Utilisation Request |
| 5.2.1 | A Utilisation Request for a Loan is irrevocable and will not be regarded as having been duly completed unless: |
| (A) | the proposed Utilisation Date is a Business Day within the Availability Period; |
| (B) | the currency and amount of the Loan comply with Clause 5.3 (Currency and amount); and |
| (C) | the proposed Interest Period of the Loan complies with Clause 10 (Interest Periods). |
| 5.2.2 | Only one Loan may be requested in each Utilisation Request. |
| 5.3.1 | The currency specified in a Utilisation Request must be the Base Currency or an Optional Currency. |
| 5.3.2 | The amount of the proposed Loan must be: |
| (A) | a minimum of USD5,000,000 (or its equivalent); or |
| (B) | such other amount as the Facility Agent may agree, |
and, in any event, such that its Base Currency Amount is less
than or equal to the Available Facility.
| 5.4 | Lenders' participation |
| 5.4.1 | If the conditions set out in this Agreement have been met, and subject to Clause 7 (Repayment), each Lender must make
its participation in a requested Loan available by the Utilisation Date through its Facility Office by no later than 2:00p.m. to
the Facility Agent. |
| 5.4.2 | The amount of each Lender's participation in a Loan will be its Pro Rata Share immediately before making the Loan. |
| 5.4.3 | No Lender is obliged to participate in a Loan if, as a result: |
| (A) | its participation in the Loans would exceed its Commitment; or |
| (B) | the Loans would exceed the Total Commitments. |
| 5.4.4 | The Facility Agent must determine the Base Currency Amount of each Loan which is to be made in an Optional Currency and must notify
each Lender of the details of that Loan and the amount of its participation in that Loan and, if different, the amount of that participation
to be made available in accordance with Clause 29.1 (Payments to the Facility Agent), in each case, by the Specified Time. |
| 6.1.1 | The Company must select the currency of a Loan in the applicable Utilisation Request. |
| 6.1.2 | Unless the Facility Agent otherwise agrees, the Loans may not be denominated at any one time in more than five currencies. |
| 6.2 | Conditions relating to Optional Currencies |
| 6.2.1 | A currency will constitute an Optional Currency in relation to a Loan for an Interest Period if that Optional Currency: |
| (A) | is EUR, GBP or AUD; or |
| (1) | is readily available in the amount required and freely convertible into the Base Currency in the wholesale market for that currency
at the Specified Time and the first day of that Interest Period; |
| (2) | has been approved by the Facility Agent (acting on the instructions of all the Lenders) before receipt by the Facility Agent of the
relevant Utilisation Request; and |
| (3) | for which there are Reference Rate Terms. |
| 6.2.2 | If the Facility Agent has received a request from the Company for a currency to be approved as an Optional Currency, the Facility
Agent must confirm to the Company by the Specified Time: |
| (A) | whether or not the Lenders have approved the currency; and |
| (B) | if approval has been given, the minimum amount (and, if required, integral multiples) for any Loan in that currency. |
| 6.3 | Unavailability of a currency for a Loan |
| 6.3.1 | If before the Specified Time: |
| (A) | a Lender notifies the Facility Agent that the Optional Currency requested for a Loan is not readily available to it in the amount
and for the period required; or |
| (B) | a Lender notifies the Facility Agent that participating in a Loan in the proposed Optional Currency would contravene any law or regulation
applicable to it, |
the Facility Agent must notify the Company to that effect promptly
and in any event before the Specified Time on that day.
| (A) | the relevant Lender must participate in the Loan in the Base Currency (in an amount equal to that Lender's Pro Rata Share of the Base
Currency Amount of the Loan); and |
| (B) | the participation in the Loan of that Lender and any other similarly affected Lender(s) will be treated as a separate Loan denominated
in the Base Currency during the relevant Interest Period. |
| 6.3.3 | Any part of a Loan treated as a separate Loan under this Clause 6.3 will not be taken into account for the purposes of any limit on
the number of Loans or currencies outstanding at any one time. |
| 6.4 | Optional Currency equivalents |
The equivalent in the Base Currency of a Loan or part of
a Loan in an Optional Currency for the purposes of calculating:
| 6.4.1 | whether any limit under this Agreement has been exceeded; |
| 6.4.2 | the participation of a Lender in a Loan; |
| 6.4.3 | the amount of any repayment or prepayment of a Loan; or |
| 6.4.4 | the amount of a Lender's Available Commitment, |
is its Base Currency Amount.
| 7.1 | The Company must repay each Loan in full on the last day of its Interest Period. |
| 7.2 | Without prejudice to the Company's obligation under Clause 7.1, if one or more Loans are to be made available to the Company: |
| 7.2.1 | on the same day that any maturing Loans are due to be repaid by the Company; |
| 7.2.2 | in the same currency as the maturing Loans; and |
| 7.2.3 | in whole or in part for the purpose of refinancing the maturing Loans, |
the new Loans will be treated as if applied in or towards repayment
of the maturing Loans so that:
| (A) | if the aggregate amount of the maturing Loans exceeds the aggregate amount of the new Loans: |
| (1) | the Company will only be required to pay an amount in cash in the relevant currency equal to that excess; and |
| (2) | each Lender's participation in the new Loans will be treated as having been made available and applied by the Company in or towards
repayment of that Lender's participation in the maturing Loans and that Lender will not be required to make its participation in the new
Loans available in cash; and |
| (B) | if the aggregate amount of the maturing Loans is equal to or less than the aggregate amount of the new Loans: |
| (1) | the Company will not be required to make any payment in cash; and |
| (2) | each Lender will be required to make its participation in the new Loans available in cash only to the extent that its participation
in the new Loans exceeds that Lender's participation in the maturing Loans and the remainder of that Lender's participation in the new
Loans will be treated as having been made available and applied by the Company in or towards repayment of that Lender's participation
in the maturing Loans. |
| 7.3 | At any time when a Lender becomes a Defaulting Lender, the maturity date of each of the participations of that Lender in the Loans
then outstanding will be automatically extended to the Termination Date and will be treated as separate Loans (the Separate Loans) denominated
in the currency in which the relevant participations are outstanding. |
| 7.4 | If the Company makes a prepayment of a Utilisation pursuant to Clause 8.5 (Voluntary prepayment), the Company may prepay any
outstanding Separate Loan by giving not less than three Business Days' prior notice to the Facility Agent. The Facility Agent will forward
a copy of a prepayment notice received in accordance with this Clause 7.4 to the Defaulting Lender concerned as soon as practicable on
receipt. |
| 7.5 | Interest in respect of a Separate Loan will accrue for successive Interest Periods selected by the Company by the time and date specified
by the Facility Agent (acting reasonably) and will be payable by the Company to the Facility Agent (for the account of that Defaulting
Lender) on the last day of each Interest Period of that Loan. |
| 7.6 | The terms of this Agreement relating to Loans generally shall continue to apply to Separate Loans other than to the extent inconsistent
with Clauses 7.3 to 7.5, in which case those Clauses shall prevail in respect of any Separate Loan. |
| 8. | Prepayment and cancellation |
| 8.1.1 | If, in any applicable jurisdiction, it becomes unlawful for a Lender to perform any of its obligations as contemplated by any Finance
Document or to fund or maintain its participation in any Loan, that Lender must notify the Facility Agent promptly on becoming aware of
that event. |
| 8.1.2 | After a Lender notifies the Facility Agent under Clause 8.1.1: |
| (A) | the Facility Agent must notify the Company promptly; |
| (B) | with immediate effect, that Lender will not be obliged to fund any Loan; and |
| (C) | unless that Lender's participation and Commitment have been transferred pursuant to Clause 8.7.4 (Right of replacement or repayment
and cancellation in relation to a single Lender), on the date specified in Clause 8.1.3 below: |
| (1) | the Company must repay or prepay that Lender's participation in each Loan; and |
| (2) | that Lender's Commitment will be cancelled. |
| (A) | repayment or prepayment of a Lender's participation in a Loan and cancellation of its corresponding Commitment will be: |
| (1) | the last day of the Interest Period of that Loan; or |
| (2) | if earlier, the date specified in that Lender's notice to the Facility Agent under Clause 8.1.1 above(which must be no earlier than
the last day of any applicable grace period permitted by law); and |
| (B) | cancellation of that Lender's other Commitment will be the date specified in the Lender's notice to the Facility Agent under Clause
8.1.1 (which must be no earlier than the last day of any applicable grace period permitted by law). |
| 8.2.1 | For
the purposes of this Clause 8.2: |
a "change of control" occurs
if any person or group of persons acting in concert gains control of the Company;
"acting
in concert "means acting together pursuant to an agreement or understanding (whether formal or informal); and
"control
"means the power to direct the management and policies of an entity (whether through the ownership of voting capital,
by contract or otherwise).
| 8.2.2 | The
Company must notify the Facility Agent promptly on becoming aware of any change of control.
The Facility Agent must then promptly notify the Lenders of that event occurring. |
| 8.2.3 | After
a change of control: |
| (A) | no Lender
will be obliged to fund a Loan (except for a Rollover Loan); and |
| (B) | if a Lender
so requires and notifies the Facility Agent within 30 days of the Company notifying the Facility
Agent of the change of control, the Facility Agent must, by not less than 30 days' notice
to the Company: |
| (1) | cancel
the Commitment of that Lender; and |
| (2) | declare
the participation of that Lender in all outstanding Loans, together with accrued interest
and all other amounts accrued or outstanding to that Lender under the Finance Documents,
to be immediately due and payable. |
Any such notice will take effect in accordance
with its terms.
| 8.3.1 | The
Company must notify the Facility Agent promptly on becoming aware of a Sanctions Event. The
Facility Agent must then promptly notify the Lenders of that event occurring. |
| 8.3.2 | Upon
the occurrence of a Sanctions Event: |
| (A) | no Lender
will be obliged to fund a Loan; and |
| (B) | if a Lender
so requires and notifies the Facility Agent within 30 days of the Company notifying the Facility
Agent of the Sanctions Event, the Facility Agent must, by not less than 30 days' notice to
the Company: |
| (1) | cancel
the Commitment of that Lender; and |
| (2) | declare
the participation of that Lender in all outstanding Loans, together with accrued interest
and all other amounts accrued or outstanding to that Lender under the Finance Documents,
to be immediately due and payable. |
Any such notice will take effect
in accordance with its terms.
| 8.4 | Voluntary
cancellation |
| 8.4.1 | The
Company may, if it gives the Facility Agent not less than three Business Days' (or such shorter
period as the Majority Lenders may agree) notice, cancel the whole or any part of the Available
Facility. |
| 8.4.2 | Partial
cancellation of the Available Facility must be in a minimum amount of USD5,000,000. |
| 8.4.3 | Any
cancellation in part will reduce the Commitment of each Lender pro rata. |
| 8.5.1 | Subject
to as set out in Clause 8.5.2 below, the Company may, if it gives the Facility Agent: |
| (A) | in the
case of a Term Rate Loan, not less than three Business Days' (or such shorter period as the
Majority Lenders may agree) prior written notice; |
| (B) | in the
case of a Compounded Rate Loan, not less than five RFR Banking Days' (or such shorter period
as the Majority Lenders may agree) prior written notice, |
prepay the whole or any part of a Loan at
any time.
| 8.5.2 | The
Company may not make more than six voluntary prepayments pursuant to Clause 8.5.1(B) in
any 12-Month period beginning on the Signing Date, unless the Company pays to the Facility
Agent an administrative fee in the amount of USD3,000 in relation to each such additional
voluntary prepayment. |
| 8.5.3 | A prepayment
of part of a Loan must be in a minimum amount of USD5,000,000 (or its equivalent). |
| 8.6 | Automatic
cancellation |
The unutilised Commitment of each Lender
will be automatically cancelled at close of business on the last day of the Availability Period.
| 8.7 | Right
of replacement or repayment and cancellation in relation to a single Lender |
| (A) | any sum
payable to any Lender by an Obligor is required to be increased under Clause 13.2.3 (Tax
gross-up); or |
| (B) | any Lender
claims any amount from the Company under Clause 13.3 (Tax indemnity) or Clause 14
(Increased Costs), |
the Company may, while the circumstances
giving rise to the requirement for that increase or payment of that amount to continue, give notice to the Facility Agent of its intention
to cancel the Commitment of that Lender and repay or prepay that Lender's participation in all outstanding Loans, or of its intention
to replace that Lender in accordance with Clause 8.7.4.
| 8.7.2 | On
receipt of a notice of prepayment and cancellation under Clause 8.7.1 in relation to a Lender: |
| (A) | the Commitment
of that Lender will immediately be reduced to zero; and |
| (B) | the Company
must repay or prepay that Lender's participation in each Loan on the date specified in Clause
8.7.3. |
| 8.7.3 | The
date for repayment or prepayment of a Lender's participation in a Loan will be: |
| (A) | the last
day of the Interest Period for that Loan which is current on the date of the notice under
Clause 8.7.1; or |
| (B) | if earlier,
the date specified in the Company's notice to the Facility Agent under Clause 8.7.1. |
| (A) | any of
the circumstances set out in Clause 8.7.1 apply to a Lender; or |
| (B) | the Company
becomes obliged to pay an amount in accordance with Clause 8.1 (Illegality) or Clause
8.3 (Sanctions Event) to a Lender, |
the Company may, on not less than five Business
Days' notice to the Facility Agent and that Lender, replace that Lender by requiring that Lender to (and, to the extent permitted by
law, that Lender must) transfer pursuant to this Agreement all of its rights and obligations under this Agreement.
| 8.7.5 | The
transferee must be a Lender or other bank or financial institution selected by the Company
which confirms its willingness to assume and does assume all the obligations of the transferring
Lender in accordance with this Agreement for a purchase price in cash payable at the time
of the transfer in an amount equal to the outstanding principal amount of such Lender's participation
in the outstanding Loans and all accrued interest (to the extent that the Facility Agent
has not given a notification under Clause 24.9 (Pro rata interest settlement)), Break
Costs and other amounts payable in relation to it under the Finance Documents. |
| 8.7.6 | The
replacement of a Lender pursuant to Clause 8.7.4 will be subject to the following conditions: |
| (A) | the Company
will have no right to replace the Facility Agent; |
| (B) | neither
the Facility Agent nor any Lender will have any obligation to find a replacement Lender; |
| (C) | the Lender
to be replaced will not be required to pay or surrender any of the fees received by that
Lender pursuant to the Finance Documents; and |
| (D) | the Lender
to be replaced will only be obliged to transfer its rights and obligations in accordance
with Clause 8.7.4 once it is satisfied that it has complied with any "know your customer"
checks or other similar checks required under any applicable law or regulation in relation
to that transfer. |
| 8.7.7 | A Lender
to be replaced must perform the checks described in Clause 8.7.6(D) above as soon as
reasonably practicable after delivery of a notice under Clause 8.7.4 and must notify the
Facility Agent and the Company promptly when it is satisfied that it has complied with those
checks. |
| 8.8 | Right
of cancellation in relation to a Defaulting Lender |
| 8.8.1 | If
any Lender becomes a Defaulting Lender, the Company may, at any time while the Lender continues
to be a Defaulting Lender, give the Facility Agent three Business Days' notice of cancellation
of each Available Commitment of that Lender. |
| 8.8.2 | On
the notice referred to in Clause 8.8.1 becoming effective, each Available Commitment of the
Defaulting Lender will immediately be reduced to zero. |
| 8.8.3 | The
Facility Agent must as soon as practicable after receipt of a notice referred to in Clause
8.8.1, notify all the Lenders. |
| 8.9.1 | Any
voluntary prepayment of a Loan under Clause 8.5 (Voluntary prepayment) may be re-borrowed
on the terms of this Agreement. |
| 8.9.2 | Any
other prepayment of a Loan may not be re-borrowed. |
| 8.10.1 | Any
notice of cancellation or prepayment under this Clause 8: |
| (B) | unless
a contrary indication appears in this Agreement, must specify: |
| (1) | the date
on which the relevant cancellation or prepayment is to be made; and |
| (2) | the amount
of that cancellation or prepayment. |
| 8.10.2 | Any
prepayment under this Agreement must be made together with accrued interest on the amount
prepaid and, subject to any Break Costs, without premium or penalty. |
| 8.10.3 | No
prepayment or cancellation is allowed except at the times and in the manner expressly provided
for in this Agreement. |
| 8.10.4 | Subject
to Clause 2.3 (Increase) and Clause 2.4 (Accordion Increase in Commitments),
no amount of the Commitments cancelled under this Agreement may be subsequently reinstated. |
| 8.10.5 | If
the Facility Agent receives a notice under this Clause 8, it must promptly forward a copy
of that notice to either the Company or the affected Lender(s), as appropriate. |
| 8.10.6 | If
all or part of a Lender's participation in a Loan is repaid or prepaid and is not available
for re-borrowing (other than by operation of Clause 6.3 (Unavailability of a currency
for a Loan)), an equivalent amount of that Lender's Commitment will be deemed to be cancelled
on the date of repayment or prepayment. |
| 8.11 | Application
of prepayments |
Any prepayment of a Loan pursuant to Clause
8.5 (Voluntary prepayment) will be applied pro rata to each Lender's participation in that Loan.
| 9.1 | Calculation
of interest – Term Rate Loans |
The rate of interest on each Term Rate
Loan for an Interest Period is the percentage rate per annum which is the aggregate of the applicable:
| 9.1.2 | Term
Reference Rate. |
| 9.2 | Calculation
of interest – Compounded Rate Loans |
| 9.2.1 | The
rate of interest on each Compounded Rate Loan for any day during an Interest Period is the
percentage rate per annum which is the aggregate of the applicable: |
| (B) | Compounded
Reference Rate for that day. |
| 9.2.2 | If
any day during an Interest Period for a Compounded Rate Loan is not an RFR Banking Day, the
rate of interest on that Compounded Rate Loan for that day will be the rate applicable to
the immediately preceding RFR Banking Day. |
Except where this Agreement expressly
provides to the contrary, the Company must pay accrued interest on each Loan on the last day of each Interest Period (and, if the Interest
Period is longer than six Months, on the dates falling at six-Monthly intervals after the first day of the Interest Period).
"Rating
Agency" means Fitch, Moody's, S&P or any other rating agency approved by the Majority Lenders.
| 9.4.2 | The
Margin at the Signing Date is 0.55% per annum. |
| 9.4.3 | Subject
to the other provisions of this Clause 9.4, the Margin will be calculated by reference to
the table below: |
Relevant
Long-term Credit Rating |
Margin
(% per
annum) |
Moody's |
S&P
(or, if applicable, Fitch) |
|
A3
(or higher) |
A-
(or higher) |
0.40 |
Baa1 |
BBB+ |
0.50 |
Baa2 |
BBB |
0.60 |
Baa3 |
BBB- |
0.70 |
Ba1
(or lower) |
BB+
(or lower) |
0.90 |
| 9.4.4 | The
Relevant Long-term Credit Rating for the purposes of this Clause 9 shall be the long-term
credit rating of the Company. |
| 9.4.5 | In
the event that one of the Rating Agencies ceases to provide a Relevant Long-term Credit Rating
then the Margin shall continue to be determined on the basis of the remaining Rating Agency. |
| 9.4.6 | If
the Relevant Long-term Credit Ratings given by the Rating Agencies are such that a different
Margin is applicable to each rating, the applicable Margin will be the average of the Margins
applicable to the relevant ratings as set out in the table in Clause 9.4.3. |
| 9.4.7 | Any
change in the Margin will, subject to Clause 9.4.8, apply to each Loan made, or (if outstanding)
from the start of its next Interest Period after the change in rating. |
| (A) | an Event
of Default is continuing; or |
| (B) | no Rating
Agency gives a Relevant Long-term Credit Rating (and a replacement Rating Agency has not
been appointed), |
the Margin will be the highest applicable
rate, being 0.90% per annum.
| 9.5.1 | If
an Obligor fails to pay any amount payable by it under a Finance Document on its due date,
interest will 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 Clause 9.5.3, is 1% per annum
higher than the rate which would have been payable if the overdue amount had, during the
period of non-payment, constituted a Loan in the currency of the overdue amount for successive
Interest Periods, each with a duration selected by the Facility Agent (acting reasonably). |
| 9.5.2 | Any
interest accruing under this Clause 9.5 will be immediately payable by the Obligor on demand
by the Facility Agent. |
| 9.5.3 | If
any overdue amount consists of all or part of a Term Rate Loan which became due on a day
which was not the last day of its Interest Period: |
| (A) | the first
Interest Period for that overdue amount will have a duration equal to the unexpired portion
of the then current Interest Period relating to that Loan; and |
| (B) | the rate
of interest applying to the overdue amount during that first Interest Period will be 1% per
annum higher than the rate which would have applied if the overdue amount had not become
due. |
| 9.5.4 | Unpaid
interest 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. |
| 9.6.1 | The
Facility Agent must notify each relevant Party of the determination of a rate of interest
relating to a Term Rate Loan. |
| 9.6.2 | The
Facility Agent must upon a Compounded Rate Interest Payment being determinable promptly notify: |
| (A) | the Company
of that Compounded Rate Interest Payment; |
| (B) | each Lender
of the proportion of that Compounded Rate Interest Payment which relates to that Lender's
participation in the relevant Compounded Rate Loan; |
| (C) | the Lenders
and the Company of each applicable rate of interest relating to the determination of that
Compounded Rate Interest Payment; and |
| (D) | to the
extent it is then determinable, the Market Disruption Rate (if any) relating to the relevant
Compounded Rate Loan. |
This Clause 9.6.2 shall not apply to any
Compounded Rate Interest Payment determined pursuant to Clause 11.4 (Cost of funds).
| 9.6.3 | The
Facility Agent must notify the Company promptly of each Funding Rate relating to a Loan. |
| 9.6.4 | The
Facility Agent must notify the relevant Lenders and the Company promptly of the determination
of a rate of interest relating to a Compounded Rate Loan to which Clause 11.4 (Cost of
funds) applies. |
| 9.6.5 | This
Clause 9.6 shall not require the Facility Agent to make any notification to any Party on
a day which is not a Business Day. |
| 10.1 | Selection
of Interest Periods |
| 10.1.1 | Each
Loan has one Interest Period only. |
| 10.1.2 | The
Company must select the Interest Period for a Loan in the applicable Utilisation Request. |
| 10.1.3 | The
Interest Period for a Loan will start on its Utilisation Date. |
| 10.1.4 | Subject
to the other provisions of this Clause 10, the Interest Period for a Loan must be any period
specified in the applicable Reference Rate Terms or any other period agreed by the Company,
the Facility Agent (acting in its own capacity) and all the Lenders participating in that
Loan. |
| 10.1.5 | No
Interest Period for a Compounded Rate Loan shall be longer than three Months. |
| 10.1.6 | The
length of an Interest Period of a Term Rate Loan shall not be affected by that Term Rate
Loan becoming a "Compounded Rate Loan" for that Interest Period pursuant to Clause
11.1 (Interest calculation if no Primary Term Rate). |
Any rules specified as "Business
Day Conventions" in the applicable Reference Rate Terms for a Loan or Unpaid Sum shall apply to each Interest Period for that Loan
or Unpaid Sum.
| 10.3 | No overrunning
the Termination Date |
If an Interest Period would otherwise
end after the Termination Date, it will be shortened so that it ends on the Termination Date.
The Facility Agent must notify each relevant
Party of the duration of each Interest Period promptly after ascertaining it.
| 11. | Changes
to the calculation of interest |
| 11.1 | Interest
calculation if no Primary Term Rate |
| 11.1.1 | Interpolated
Primary Term Rate |
If no Primary Term Rate is available for
the Interest Period of a Loan, the applicable Term Reference Rate shall be the Interpolated Primary Term Rate for a period equal in length
to the Interest Period of that Loan.
| 11.1.2 | Shortened
Interest Period |
If Clause 11.1.1 applies but it is not possible
to calculate the Interpolated Primary Term Rate, the Interest Period of the Loan shall (if it is longer than the applicable Fallback
Interest Period) be shortened to the applicable Fallback Interest Period and the applicable Term Reference Rate shall be determined pursuant
to the relevant definition.
| 11.1.3 | Shortened
Interest Period and Historic Primary Term Rate |
If Clause 11.1.2 applies but no Primary
Term Rate is available for the Interest Period of that Loan and it is not possible to calculate the Interpolated Primary Term Rate, the
applicable Term Reference Rate shall be the Historic Primary Term Rate for that Loan.
| 11.1.4 | Shortened
Interest Period and Interpolated Historic Primary Term Rate |
If Clause 11.1.3 applies but no Historic
Primary Term Rate is available for the Interest Period of the Loan, the applicable Term Reference Rate shall be the Interpolated Historic
Primary Term Rate for a period equal in length to the Interest Period of that Loan.
| 11.1.5 | Alternative
Term Rate |
If Clause 11.1.4 applies but it is not possible
to calculate the Interpolated Historic Primary Term Rate, the Interest Period of that Loan shall, if it has been shortened pursuant to
Clause 11.1.2, revert to its previous length and the applicable Term Reference Rate shall be the aggregate of:
| (A) | the Alternative
Term Rate as of the Quotation Time for a period equal in length to the Interest Period of
that Loan; and |
| (B) | any applicable
Alternative Term Rate Adjustment. |
| 11.1.6 | Interpolated
Alternative Term Rate |
If Clause 11.1.5 applies but no Alternative
Term Rate is available for the Interest Period of that Loan, the applicable Term Reference Rate shall be the aggregate of:
| (A) | the Interpolated
Alternative Term Rate for a period equal in length to the Interest Period of that Loan; and |
| (B) | any applicable
Alternative Term Rate Adjustment. |
| 11.1.7 | Compounded
Reference Rate or cost of funds |
If Clause 11.1.6 applies but it is not possible
to calculate the Interpolated Alternative Term Rate then:
| (A) | if "Compounded
Reference Rate will apply as a fallback" is specified in the Reference Rate
Terms for that Loan and there are Reference Rate Terms applicable to Compounded Rate Loans
in the relevant currency: |
| (1) | there
shall be no Term Reference Rate for that Loan for that Interest Period and Clause 9.1
(Calculation of interest – Term Rate Loans) will not apply to that Loan for
that Interest Period; and |
| (2) | that
Loan shall be a "Compounded Rate Loan" for that Interest Period and Clause 9.2
(Calculation of interest – Compounded Rate Loans) shall apply to that Loan for
that Interest Period; and |
| (1) | "Compounded
Reference Rate will not apply as a fallback" and |
| (2) | "Cost
of funds will apply as a fallback", |
are specified in the Reference Rate Terms
for that Loan, Clause 11.4 (Cost of funds) shall apply to that Loan for that Interest Period.
| 11.2 | Interest
calculation if no RFR or Central Bank Rate |
If:
| 11.2.1 | there
is no applicable RFR or Central Bank Rate for the purposes of calculating the Daily Non-Cumulative
Compounded RFR Rate for an RFR Banking Day during an Interest Period for a Compounded Rate
Loan; and |
| 11.2.2 | "Cost
of funds will apply as a fallback" is specified in the Reference Rate Terms
for that Loan, |
Clause 11.4 (Cost of funds) shall
apply to that Loan for that Interest Period.
If in the case of a Loan for which a Market
Disruption Rate is specified in the Reference Rate Terms for that Loan, before the Reporting Time of that Loan, the Facility Agent receives
notification from at least two Lenders (whose participations in a Loan exceed 35% of that Loan) that its cost of funds relating to its
participation in that Loan would be in excess of that Market Disruption Rate, then Clause 11.4 (Cost of funds) will apply to that
Loan for the relevant Interest Period.
| 11.4.1 | If
this Clause 11.4 applies to a Loan for an Interest Period neither Clause 9.1 (Calculation
of interest – Term Rate Loans) nor Clause 9.2 (Calculation of interest –
Compounded Rate Loans) shall apply to that Loan for that Interest Period and the rate
of interest on the relevant Loan for the relevant Interest Period will be the percentage
rate per annum which is the sum of: |
| (A) | the applicable
Margin; and |
| (B) | the weighted
average of the rates notified to the Facility Agent by each Lender as soon as practicable,
and in any event by the Reporting Time for that Loan, to be that which expresses as a percentage
rate per annum its cost of funds relating to its participation in that Loan. |
| 11.4.2 | If
this Clause 11.4 applies and the Facility Agent or the Company so requires, the Facility
Agent and the Company must enter into negotiations (for a period of not more than 30 days)
with a view to agreeing a substitute basis for determining the rate of interest and/or cost
of funding for the affected Loan. |
| 11.4.3 | Any
alternative basis agreed pursuant to Clause 11.4.2 will, with the prior consent of all the
Lenders and the Company, be binding on all Parties. |
| 11.4.4 | If
this Clause 11.4 applies but any Lender does not notify the Facility Agent of a rate by the
time specified in Clause 11.4.1(B), the rate of interest on the relevant Loan for the relevant
Interest Period will be calculated on the basis of the rates notified by the other Lenders. |
| 11.4.5 | If
this Clause 11.4 applies the Facility Agent shall, as soon as is practicable, notify the
Company. |
| 11.5.1 | If
an amount is specified as Break Costs in the Reference Rate Terms for a Loan or Unpaid Sum,
the Company, within three Business Days of demand by a Finance Party, must pay to that Finance
Party its Break Costs (if any) if all or any part of a Loan or Unpaid Sum is paid on a day
prior to the last day of an applicable Interest Period. |
| 11.5.2 | Each
Lender must, together with its demand, provide a certificate confirming the amount of any
Break Costs for any Interest Period in respect of which they become, or may become, payable. |
| 12.1.1 | The
Company must pay to the Facility Agent (for the account of each Lender) a commitment fee
computed at the rate of 35% of the applicable Margin on that Lender's Available Commitment. |
| 12.1.2 | The
commitment fee shall accrue on and from the Signing Date. |
| 12.1.3 | 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 a Lender's Commitment at the time the cancellation
is effective. |
| 12.1.4 | No
commitment fee is payable on any Commitment of a Lender of any day on which that Lender is
a Defaulting Lender. |
The Company must pay to the Facility Agent
(for the account of each Original Lender) an arrangement fee in the amount and manner agreed in a Fee Letter.
The Company must pay to the Facility Agent
(for its own account) an agency fee in the amount and manner agreed in a Fee Letter.
| 12.4.1 | The
Company must pay to the Facility Agent (for the account of each Lender) a utilisation fee
computed at the rate of: |
| (A) | for each
day on which the aggregate amount of the outstanding Loans is less than or equal to 33⅓%
of the Total Commitments, 0.10% per annum; |
| (B) | for each
date on which the aggregate amount of the outstanding Loans exceeds 33⅓% of the Total
Commitments but is less than or equal to 66⅔% of the Total Commitments, 0.20% per
annum; and |
| (C) | for each
day on which the aggregate amount of the outstanding Loans exceeds 66⅔% of the Total
Commitments, 0.30% per annum. |
| 12.4.2 | The
utilisation fee is payable on the amount of each Lender's participation in the Loans. |
| 12.4.3 | The
accrued utilisation fee is payable on the last day of each successive period of three Months
which ends during the Availability Period, on the last date of the Availability Period and,
if cancelled in full, at the time the cancellation of a Lender's Commitment is effective. |
| 13. | Tax
gross-up and indemnities |
"Borrower
DTTP Filing" means an HM Revenue & Customs Form DTTP2 duly completed and filed by the Company, which:
| (a) | where
it relates to a Treaty Lender that is an Original Lender, contains the scheme reference number
and jurisdiction of tax residence stated opposite that Lender's name in Schedule 1 (Original
Parties) and is filed with HM Revenue & Customs within 30 days of the Signing
Date; or |
| (b) | where
it relates to a Treaty Lender that is a New Lender, contains the scheme reference number
and jurisdiction of tax residence stated in respect of that Lender in the relevant Transfer
Certificate, Assignment Agreement, Increase Confirmation or Accordion Increase Confirmation
and is filed with HM Revenue & Customs within 30 days of the relevant Transfer Date, Increase
Date or Accordion Increase Date (as the case may be); or |
| (c) | where
it relates to a Treaty Lender in respect of which a Borrower DTTP Filing within paragraph
(a) or (b) above has already been made, and where HM Revenue & Customs
have already given the Company authority to make payments to that Lender without a Tax Deduction,
and: |
| (i) | that
authority has ceased to have effect by reason of any of the conditions on which that authority
was given having ceased to become applicable; or |
| (ii) | that
authority is time limited and is due to expire within 60 Business Days, |
contains the scheme reference number and
jurisdiction of tax residence referred to in paragraph (a) or (b) above, as appropriate, and is filed with HM Revenue &
Customs by the date 30 Business Days after that authority has ceased to have effect (for cases falling within paragraph (i)) or 60 Business
Days before the date on which the authority is due to expire (for cases falling within paragraph (ii) above).
"Building
Society Lender" means a Lender which is a building society (as defined for the purpose of section 880 of the ITA) making
an advance under a Finance Document.
"Protected
Party "means a Finance Party which incurs or will incur any cost, loss or liability, or is or will be 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 a Lender which is:
"Tax
Confirmation" means a confirmation by a Lender that the person beneficially entitled to interest payable to that Lender
in respect of an advance made under a Finance Document is either:
| (a) | a company
resident in the UK for UK tax purposes; |
| (b) | a partnership
of which each member is: |
| (i) | a company
resident in the UK for UK tax purposes; or |
| (ii) | a company
not resident in the UK for UK tax purposes which carries on a trade in the UK through a permanent
establishment and which brings into account in computing its chargeable profits (within the
meaning of section 19 of the CTA) the whole of any share of interest payable in respect of
that advance that falls to it by reason of Part 17 of the CTA; or |
| (iii) | a company
not resident in the UK for UK tax purposes which carries on a trade in the UK through a permanent
establishment and which brings into account interest payable in respect of that advance in
computing the chargeable profits (within the meaning of section 19 of the CTA) of that company. |
"Tax
Credit" means a "credit" against, relief or remission for, or repayment of any Tax.
"Treaty
Lender" means a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance "under"
a Finance Document and which:
| (a) | is treated
as a resident of a Treaty State for the purposes of the Treaty; and |
| (b) | does
not carry on a business in the UK through a permanent establishment with which that Lender's
participation in the advance is effectively connected; and |
| (c) | meets
all other conditions in the relevant Treaty for full exemption from Tax imposed by the UK
on interest, except that for this purpose it shall be assumed that the following are satisfied: |
| (i) | any condition
which relates (expressly or by implication) to: |
| (A) | there
not being a special relationship between the Obligor and a Lender or between both of them
and another person; or |
| (B) | the
amounts or terms of any Loan or the Finance Documents; or |
| (C) | to any
other matter that is outside the exclusive control of that Lender and its Affiliates and
which does not relate solely to the Lender's circumstances or those of its Affiliates; and |
| (ii) | any
necessary procedural formalities. |
"Treaty
State" means a jurisdiction having a double taxation agreement (a "Treaty") with the UK which makes
provision for full exemption from Tax imposed by the UK on interest.
"UK
Lender" means:
| (a) | a Lender
which is beneficially entitled to interest payable to that Lender in respect of an advance
under a Finance Document and is: |
| (A) | which
is a bank (as defined for the purposes of section 879 of the ITA) making an advance under
a Finance Document and is within the charge to UK corporation tax as respects any payments
of interest made in respect of that advance or would be within such charge as respects such
payments apart from section 18A of the CTA; or |
| (B) | 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 the ITA) at the time that the advance was made and which is within
the charge to UK corporation tax as respects any payments of interest made in respect of
that advance, or is a bank (as defined for the purpose of section 879 of the ITA) and would
be within such charge as respects such payments apart from section 18A of the CTA; or |
| (A) | a company
resident in the UK for UK tax purposes; |
| (B) | a partnership
of which each member is: |
| (1) | a company
resident in the UK for UK tax purposes; or |
| (2) | a company
not resident in the UK for UK tax purposes which carries on a trade in the UK through a permanent
establishment and which brings into account in computing its chargeable profits (within the
meaning of section 19 of the CTA) the whole of any share of interest payable in respect
of that advance that falls to it by reason of Part 17 of the CTA; or |
| (C) | a company
not resident in the UK for UK tax purposes which carries on a trade in the UK through a permanent
establishment and which brings into account interest payable in respect of that advance in
computing the chargeable profits (within the meaning of section 19 of the CTA) of that
company; or |
| (b) | a Building
Society Lender. |
"UK
Non-Bank Lender" means:
| (c) | where
a Lender becomes a Party on the day on which this Agreement is entered into, a Lender listed
in Schedule 1 (Original Parties) as a UK Non-Bank Lender; and |
| (d) | where
a Lender becomes a Party after the day on which this Agreement is entered into, a Lender
which gives a Tax Confirmation in the Assignment Agreement or Transfer Certificate which
it executes on becoming a Party. |
| 13.1.2 | Unless
this Clause 13 expressly provides to the contrary, a reference to "determines"
or "determined" means a determination made in the absolute discretion
of the person making the determination. |
| (A) | references
to a company do not include a limited liability partnership ("LLP") under
the Limited Liability Partnership Act 2000 in relation to which section 863(1) of the
Income Tax (Trading and Other Income) Act 2005 applies; and |
| (B) | references
to a partnership include an LLP. |
| 13.2.1 | Each
Obligor must make all payments to be made by it without any Tax Deduction, unless a Tax Deduction
is required by law. |
| 13.2.2 | The
Company must, promptly on becoming aware that an Obligor must make a Tax Deduction (or that
there is a change in the rate or the basis of a Tax Deduction), notify the Facility Agent
accordingly. A Lender must notify the Facility Agent promptly on becoming so aware in respect
of a payment payable to that Lender. If the Facility Agent receives such notification, it
must notify the affected Parties promptly. |
| 13.2.3 | If
a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due
from that Obligor must 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. |
| 13.2.4 | A
payment will not be increased under Clause 13.2.3 by reason of a Tax Deduction on account
of Tax imposed by the UK, if on the date on which the payment falls due: |
| (A) | the payment
could have been made to the relevant Lender without a Tax Deduction if the Lender had been
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 published concession of any relevant taxing authority; or |
| (B) | the relevant
Lender is a Qualifying Lender solely by virtue of paragraph (a)(ii) of the definition
of UK Lender and: |
| (1) | an officer
of HM Revenue & Customs has given (and not revoked) a direction (a "Direction")
under section 931 of the ITA (as that provision has effect on the date on which the relevant
Lender became a Party) which relates to the payment; |
| (2) | that
Lender has received from the Obligor making the payment or from the Company a certified copy
of that Direction; and |
| (3) | the payment
could have been made to the Lender without any Tax Deduction if that Direction had not been
made; or |
| (C) | the relevant
Lender is a Qualifying Lender solely by virtue of paragraph (a)(ii) of the definition
of UK Lender and: |
| (1) | the relevant
Lender has not given a Tax Confirmation to the Company; and |
| (2) | the payment
could have been made to the Lender without any Tax Deduction if the Lender had given a Tax
Confirmation to the Company, on the basis that the Tax Confirmation would have enabled the
Company to have formed a reasonable belief that the payment was an "excepted payment"
for the purpose of section 930 of the ITA; or |
| (D) | the relevant
Lender is a Treaty Lender and the Obligor making the payment is able to demonstrate that
(subject to the Obligor completing any necessary procedural formalities which it is unable
to complete as a result of the failure of the relevant Lender to comply with its obligations
under Clause 13.2.7 or Clause 13.2.8) (as applicable)) the payment could have been made to
the Lender without the Tax Deduction had that Lender complied with its obligations under
Clause 13.2.7 or Clause 13.2.8 (as applicable). |
| 13.2.5 | If
an Obligor is required to make a Tax Deduction, that Obligor must 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. |
| 13.2.6 | Within
30 days of making either a Tax Deduction or any payment required in connection with that
Tax Deduction, the Obligor making that Tax Deduction or payment must deliver to the Facility
Agent for the Finance Party entitled to the payment a statement under section 975 of the
ITA or other evidence reasonably satisfactory to that Finance Party that the Tax Deduction
has been made or (as applicable) the appropriate payment has been paid to the relevant taxing
authority. |
| 13.2.7 | (A) |
Subject to paragraph (B), a Treaty Lender and each Obligor which makes a payment to which that Treaty Lender is entitled must co-operate
in completing any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction. |
| (B) | (1) |
A Treaty Lender which becomes a Party on the day on which this Agreement is entered into that holds a passport under the HM Revenue &
Customs DT Treaty Passport scheme, and which wants that scheme to apply to this Agreement, must confirm its scheme reference number and
its jurisdiction of tax residence opposite its name in Schedule 1 (Original Parties); and |
| (2) | a New
Lender that is a Treaty Lender that holds a passport under the HM Revenue & Customs
DT Treaty Passport scheme, and which wants that scheme to apply to this Agreement, must,
if the HM Revenue & Customs Treaty Passport scheme is still in operation, confirm
its scheme reference number and its jurisdiction of tax residence in the Transfer Certificate,
Assignment Agreement, Increase Confirmation or Accordion Increase Confirmation which
it executes, |
and, having done so, that Lender will
be under no obligation under paragraph (A) with respect to the relevant Obligor, if the HM Revenue & Customs Treaty Passport
scheme is still in operation.
| 13.2.8 | If
a Lender has confirmed its scheme reference number and its jurisdiction of tax residence
in accordance with Clause 13.2.7(B) above and: |
| (A) | the Company
has not made a Borrower DTTP Filing in respect of that Lender; or |
| (B) | the Company
has made a Borrower DTTP Filing in respect of that Lender but: |
| (1) | that
Borrower DTTP Filing has been rejected by HM Revenue & Customs; or |
| (2) | HM Revenue &
Customs has not given the Company authority to make payments to that Lender without a Tax
Deduction within 60 days of the date of the Borrower DTTP Filing, |
and, in each case, the Company has notified
that Lender in writing, that Lender and the Company must co-operate in completing any additional procedural formalities necessary for
the Company to obtain authorisation to make that payment without a Tax Deduction.
| 13.2.9 | If
a Lender has not confirmed its scheme reference number and jurisdiction of tax residence
in accordance with Clause 13.2.7(B), no Obligor may make a Borrower DTTP Filing or file any
other form relating to the HM Revenue & Customs DT Treaty Passport scheme in respect
of that Lender's Commitment or its participation in any Loan unless the Lender otherwise
agrees. |
| 13.2.10 | The
Company must, promptly on making a Borrower DTTP Filing, deliver a copy of that Borrower
DTTP Filing to the Facility Agent for delivery to the relevant Lender. |
| 13.2.11 | A
UK Non-Bank Lender which becomes a Party on the day on which this Agreement is entered into
gives a Tax Confirmation to the Company by entering into this Agreement. |
| 13.2.12 | A
UK Non-Bank Lender must notify the Company and the Facility Agent promptly if there is any
change in the position from that set out in the Tax Confirmation. |
| 13.3.1 | The
Company must (within three Business Days of demand by the Facility Agent) pay to a Protected
Party an amount equal to the cost, loss or liability which that Protected Party determines
will be or has been (directly or indirectly) incurred for or on account of Tax by that Protected
Party in respect of a payment received or receivable (or any payment deemed to be received
or receivable) or otherwise under a Finance Document. |
| 13.3.2 | Clause
13.3.1 does not apply: |
| (A) | with respect
to any Tax assessed on a Finance Party: |
| (1) | 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
tax purposes; or |
| (2) | under
the law of the jurisdiction in which that Finance Party's Facility Office is located in respect
of amounts received or receivable in that jurisdiction, |
if that Tax is imposed on or calculated
by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or
| (B) | to the
extent a cost, loss or liability: |
| (1) | is compensated
for by an increased payment under Clause 13.2 (Tax gross-up); or |
| (2) | would
have been compensated for by an increased payment under Clause 13.2 (Tax gross-up)
but was not compensated solely because one of the exclusions in that Clause applied; or |
| (3) | is in
respect of an amount of (i) stamp duty, registration or other similar Tax or (ii) VAT,
that is compensated for by a payment under Clause 13.6 (Stamp taxes) or 13.7 (Value
added taxes) (as applicable) or which would have been but was not compensated solely
because one of the exclusions in the relevant clause applied; or |
| (C) | relates
to a FATCA Deduction required to be made by a Party. |
| 13.3.3 | A
Protected Party making, or intending to make, a claim under Clause 13.3.1 must notify the
Facility Agent promptly of the event which will give, or has given, rise to the claim, following
which the Facility Agent must notify the Company promptly. |
| 13.3.4 | A
Protected Party must, on receiving a payment from an Obligor under this Clause 13.3, notify
the Facility Agent promptly. |
If an Obligor makes a Tax Payment and
the relevant Finance Party determines that:
| 13.4.1 | a
Tax Credit is attributable to an increased payment of which that Tax Payment forms part,
to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required
(the "Relevant Tax Credit"), that Finance Party shall co-operate with the
relevant Obligor to obtain the Relevant Tax Credit from the relevant Tax Authority; and |
| 13.4.2 | if
that Finance Party has obtained and utilised that Relevant Tax Credit (provided that where
the Relevant Tax Credit is a repayment of Tax, such Relevant Tax Credit shall be treated
as obtained and utilised by that Finance Party for the purposes of this clause 13.4 to the
extent such repayment of Tax has been received by that Finance Party from the relevant Tax
Authority), |
the Finance Party must pay an amount to
the Obligor 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 Obligor.
| 13.5 | Lender
status confirmation |
| 13.5.1 | Each
Lender which becomes a Party after the Signing Date must indicate, in the Transfer Certificate,
Assignment Agreement, Increase Confirmation or Accordion Increase Confirmation which
it executes on becoming a Party, and for the benefit of the Facility Agent and without liability
to any Obligor, which of the following categories it falls in: |
| (A) | not a Qualifying
Lender; |
| (B) | a Qualifying
Lender (other than a Treaty Lender); or |
| 13.5.2 | If
a New Lender fails to indicate its status in accordance with this Clause 13.5 then that New
Lender will be treated for the purposes of this Agreement (including by each Obligor) as
if it is not a Qualifying Lender until such time as it notifies the Facility Agent which
category applies (and the Facility Agent, on receipt of such notification, must inform the
Company). |
| 13.5.3 | A
Transfer Certificate, Assignment Agreement, Increase Confirmation or Accordion Increase
Confirmation will not be invalidated by any failure of a Lender to comply with this Clause
13.5. |
The Company
must pay and (within five 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 or other similar Tax payable in respect of any Finance Document other than
any stamp duty, registration and other similar Taxes payable in respect of any Transfer Certificate, Assignment Agreement or any other
Finance Document pursuant to which a Finance Party makes an assignment, transfer, novation, sub-participation, alienation or other disposal
of any of its rights or obligations under a Finance Document.
| 13.7.1 | All
amounts 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 any supply for VAT purposes
are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly,
subject to Clause 13.7.2, if VAT is or becomes chargeable on any supply made by any Finance
Party to any Party under a Finance Document, and such Finance Party is required to account
to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in
addition to and at the same time as paying the consideration for such supply) an amount equal
to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT
invoice to that Party). |
| 13.7.2 | If
VAT is or becomes 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 other than the Recipient (the "Relevant Party") is required by
the terms of any Finance Document to pay an amount equal to the consideration for that supply
to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect
of that consideration): |
| (A) | (where
the Supplier is the person required to account to the relevant tax authority for the VAT),
the Relevant Party must also pay to the Supplier (at the same time as paying that amount)
an additional amount equal to the amount of such VAT. The Recipient must (where this paragraph
(A) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment
the Recipient receives from the relevant tax authority which the Recipient reasonably determines
relates to the VAT chargeable on that supply; and |
| (B) | (where
the Recipient is the person required to account to the relevant tax authority for the VAT),
the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient
an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient
reasonably determines that it is not entitled to credit or repayment from the relevant tax
authority in respect of that VAT. |
| 13.7.3 | Where
a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost
or expense, that Party must reimburse and indemnify (as the case may be) the Finance Party
for the full amount of such cost or expense, including that part which represents VAT, except
to the extent that the Finance Party reasonably determines that it is entitled to credit
or repayment from the relevant tax authority. |
| 13.7.4 | Any
reference in this Clause 13.7 to any Party will, at any time when that Party is treated as
a member of a group for VAT purposes, include (where appropriate and unless the context otherwise
requires) a reference to the representative member of that group at that time (the term "representative
member" to have the same meaning as in the Value Added Tax Act 1994). |
| 13.7.5 | In
relation to any supply made by a Finance Party to any Party under a Finance Document, if
reasonably requested by such Finance Party, that Party must promptly provide such Finance
Party with details of that Party's VAT registration and such other information as is reasonably
requested in connection with such Finance Party's VAT reporting requirements in relation
to such supply. |
| 13.8.1 | Subject
to Clause 13.8.3, each Party must, within ten Business Days of a reasonable request by another
Party: |
| (A) | confirm
to that other Party whether it is: |
| (1) | a FATCA
Exempt Party; or |
| (2) | not a
FATCA Exempt Party; and |
| (B) | supply
to that other Party such forms, documentation and other information relating to its status
under FATCA as that other Party requests for the purposes of that other Party's compliance
with FATCA; |
| (C) | supply
to that other Party such forms, documentation and other information relating to its status
as that other Party reasonably requests for the purposes of that other Party's compliance
with any other law, regulation, or exchange of information regime. |
| 13.8.2 | If
a Party confirms to another Party pursuant to Clause 13.8.1(A) that it is a FATCA Exempt
Party and it subsequently becomes aware that it is not, or has ceased to be, a FATCA Exempt
Party, that Party must notify that other Party reasonably promptly. |
| 13.8.3 | Clause
13.8.1 shall not oblige any Finance Party to do anything under Clause 13.8.1 or 13.8.2 which
would or might in its reasonable opinion constitute a breach of any applicable: |
| (C) | duty of
confidentiality. |
| 13.8.4 | If
a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation
or other information relating to its status under FATCA requested in accordance with Clause
13.8.1 (including where Clause 13.8.3 applies), then that Party may be treated for the purposes
of the Finance Documents (and payments made under them) as if it is not a FATCA Exempt Party
until such time as the Party in question provides the requested confirmation, forms, documentation
or other information. |
| 13.8.5 | If
the Company is a U.S. Tax Obligor or the Facility Agent reasonably believes that its obligations
under FATCA or any other applicable law or regulation require it, each Lender shall, within
ten Business Days of: |
| (A) | where the
Company is a U.S. Tax Obligor and the relevant Lender is an Original Lender, the date of
this Agreement; |
| (B) | where the
Company is a U.S. Tax Obligor on a date on which any other Lender becomes a Party as a Lender,
that date; or |
| (C) | where the
Company is not a U.S. Tax Obligor, the date of a request from the Facility Agent, |
supply to
the Facility Agent:
| (1) | a withholding
certificate on Form W-8, Form W-9 or any other relevant form; or |
| (2) | any withholding
statement or other document, authorisation or waiver as the Facility Agent may require to
certify or establish the status of such Lender under FATCA or that other law or regulation. |
| 13.8.6 | The
Facility Agent shall provide any withholding certificate, withholding statement, document,
authorisation or waiver it receives from a Lender pursuant to Clause 13.8.5 to the Company. |
| 13.8.7 | If
any withholding certificate, withholding statement, document, authorisation or waiver provided
to the Facility Agent by a Lender pursuant to Clause 13.8.5 is or becomes materially inaccurate
or incomplete, that Lender shall promptly update it and provide such updated withholding
certificate, withholding statement, document, authorisation or waiver to the Facility Agent
unless it is unlawful for the Lender to do so (in which case the Lender shall promptly notify
the Facility Agent). The Facility Agent shall provide any such updated withholding certificate,
withholding statement, document, authorisation or waiver to the Company. |
| 13.8.8 | The
Facility Agent may rely on any withholding certificate, withholding statement, document,
authorisation or waiver it receives from a Lender pursuant to Clause 13.8.5 or Clause
13.8.7 without further verification. The Facility Agent shall not be liable for any action
taken by it under or in connection with Clauses 13.8.5, 13.8.6 or 13.8.7. |
| 13.9.1 | Each
Party may make any FATCA Deduction it is required to make by FATCA, and any payment required
in connection with that FATCA Deduction, and no Party is required to increase any payment
in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient
of the payment for that FATCA Deduction. |
| 13.9.2 | Each
Party must, promptly on becoming aware that it must make a FATCA Deduction (or that there
is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom
it is making the payment and, in addition, must notify the Company and the Facility Agent,
and the Facility Agent must promptly notify the other Finance Parties. |
| 13.10.1 | Subject
to Clause 13.10.2, each Party must, within ten Business Days of a reasonable request by another
Party, supply to that other Party such forms, documentation and other information relating
to its status as that other Party requests to enable that other Party to comply with any
regulations made under section 222 of the Finance Act 2013 or any other applicable law or
regulation implementing similar international arrangements for the exchange of Tax or financial
information between jurisdictions. |
| 13.10.2 | No
Party is obliged to do anything under Clause 13.10.1 which would or might in its reasonable
opinion constitute a beach of any applicable: |
| (C) | duty of
confidentiality. |
In this Agreement:
"Basel
II" means the "International Convergence of Capital Measurement and Capital Standards, a Revised Framework"
published by the Basel Committee in June 2004 in the form existing on the Signing Date (but excluding any amendment arising out
of Basel III).
"Basel
III" means:
| (a) | the agreements
on capital requirements, a leverage ratio and liquidity standards contained in "Basel
III: A global regulatory framework for more resilient banks and banking systems", "Basel
III: International framework for liquidity risk measurement, standards and monitoring"
and "Guidance for national authorities operating the countercyclical capital buffer"
published by the Basel Committee in December 2010, each as amended; |
| (b) | the rules for
global systemically important banks contained in "Global systemically important banks:
assessment methodology and the additional loss absorbency requirement – Rules text"
published by the Basel Committee in November 2011, as amended; and |
| (c) | any further
guidance or standards published by the Basel Committee relating to "Basel III". |
"Basel
Committee" means the Basel Committee on Banking Supervision.
"CRD
IV" means EU CRD IV and UK CRD IV.
"EU
CRD IV" means:
| (a) | Regulation
(EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential
requirements for credit institutions and investment firms; and |
| (b) | Directive
2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to
the activity of credit institutions and the prudential supervision of credit institutions
and investment firms. |
"Increased
Costs" means:
| (a) | a reduction
in the rate of return from the Facility or on a Finance Party's (or its Affiliate's) overall
capital; |
| (b) | an additional
or increased cost; or |
| (c) | 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 a Finance Document or
funding or performing its obligations under any Finance Document.
"UK
CRD IV" means:
| (a) | Regulation
(EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential
requirements for credit institutions and investment firms and amending Regulation (EU) No
648/2012 as it forms part of domestic law of the United Kingdom by virtue of the European
Union (Withdrawal) Act 2018 (the "Withdrawal Act"); |
| (b) | the law
of the United Kingdom or any part of it, which immediately before IP completion day (as defined
in the European Union (Withdrawal Agreement) Act 2020) implemented Directive 2013/36/EU of
the European Parliament and of the Council of 26 June 2013 on access to the activity
of credit institutions and the prudential supervision of credit institutions and investment
firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC and
its implementing measures; and |
| (c) | direct
EU legislation (as defined in the Withdrawal Act), which immediately before IP completion
day (as defined in the European Union (Withdrawal Agreement) Act 2020) implemented EU CRD
IV as it forms part of domestic law of the United Kingdom by virtue of the Withdrawal Act. |
Except as provided below in this Clause
14, the Company must pay to a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates
as a result of:
| 14.2.1 | the
introduction of, or any change in, or any change in the interpretation, administration or
application of, any law or regulation after the Signing Date; |
| 14.2.2 | compliance
with any law or regulation made after the Signing Date; or |
| 14.2.3 | the
implementation or application of, or compliance with, Basel III or CRD IV or any other law
or regulation which implements Basel III or CRD IV (whether such implementation, application
or compliance is by a government, regulator, Finance Party or any of its Affiliates). |
| 14.3 | Increased
Costs claims |
| 14.3.1 | A
Finance Party intending to make a claim for any Increased Costs must notify the Facility
Agent of the circumstances giving rise to and the amount of the claim, following which the
Facility Agent must promptly notify the Company. |
| 14.3.2 | Each
Finance Party must, together with its demand, provide a certificate confirming the amount
of its Increased Costs. |
The Company need not make any payment
for any Increased Costs to the extent that the Increased Cost is:
| 14.4.1 | attributable
to a Tax Deduction required by law to be made by an Obligor; |
| 14.4.2 | attributable
to a FATCA Deduction required to be made by a Party; |
| 14.4.3 | compensated
for by Clauses 13.3 (Tax indemnity), 13.6 (Stamp Taxes) or 13.7 (Value added
taxes) (or would have been compensated for under Clauses 13.3 (Tax indemnity),
13.6 (Stamp Taxes) or 13.7 (Value added taxes) but was not compensated for
because one of the exclusions in those Clauses applied; |
| 14.4.4 | attributable
to the implementation or application of, or compliance with, Basel III or CRD IV or any other
law or regulation which implements Basel III or CRD IV (whether such implementation, application
or compliance is by a government, regulator, Finance Party or any of its Affiliates) unless
the following conditions are satisfied (i) the relevant Finance Party confirms to the
Facility Agent and the Company that it is seeking to recover Basel III or CRD IV costs to
a similar extent from all borrowers with credit ratings similar to the Company's where the
facilities extended to such borrowers include a right for the Finance Party to recover such
costs; (ii) the relevant Finance Party has notified the Facility Agent of its claim
for the relevant Increased Costs within four months of its incurrence; and (iii) the
relevant Increased Costs that are the subject of the claim were not capable of being determined
with sufficient accuracy by the relevant Finance Party (acting reasonably) prior to that
Finance Party becoming Party to this Agreement; |
| 14.4.5 | attributable
to the wilful breach by the relevant Finance Party or any of its Affiliates of any law or
regulation; or |
| 14.4.6 | attributable
to the implementation or application of, or compliance with, Basel II or any other law or
regulation which implements Basel II (whether such implementation, application or compliance
is by a government, regulator, Finance Party or any of its Affiliates). |
| 15.1.1 | The
Company must (or must procure that an Obligor will) as an independent obligation indemnify
each Finance Party against any cost, loss or liability arising out of or as a result of: |
| (A) | that Finance
Party receiving an amount in respect of an Obligor's liability under the Finance Documents;
or |
| (B) | that liability
being converted into a claim, proof, order, judgment or award, |
in a currency other than the currency in
which the amount is expressed to be payable under the relevant Finance Document.
| 15.1.2 | To
the extent permitted by law, each Obligor waives any right it may have in any jurisdiction
to pay any amount under the Finance Documents in a currency other than that in which it is
expressed to be payable. |
| 15.2.1 | The
Company must (or must procure that an Obligor will) indemnify each Finance Party against
any cost, loss or liability incurred by that Finance Party as a result of: |
| (A) | the occurrence
of any Event of Default; |
| (B) | a failure
by an Obligor to pay any amount due under a Finance Document on its due date, including without
limitation, any cost, loss or liability resulting from any distribution or redistribution
of any amount among the Lenders under this Agreement; |
| (C) | funding,
or making arrangements to fund, its participation in a Loan requested 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); or |
| (D) | a Loan
(or part of a Loan) not being prepaid in accordance with the Finance Documents. |
| 15.2.2 | The
Company's liability in each case includes any cost, loss or liability incurred on account
of funds borrowed, contracted for or utilised to fund any Loan or any other amount payable
under any Finance Document. |
| 15.3 | Indemnity
to the Facility Agent |
The Company must indemnify the Facility
Agent against any cost, loss or liability incurred by the Facility Agent as a result of:
| 15.3.1 | investigating
any event which the Facility Agent reasonably believes is a Default; |
| 15.3.2 | acting
or relying on any notice, request or instruction which the Facility Agent reasonably believes
to be genuine, correct and appropriately authorised; or |
| 15.3.3 | instructing
lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as
permitted under this Agreement. |
| 16. | Mitigation
by the Lenders |
| 16.1.1 | Each
Finance Party must, in consultation with the Company, take all reasonable steps to mitigate
any circumstances which arise and which would result in the Facility ceasing to be available
or any amount becoming payable under or pursuant to, or being cancelled pursuant to, any
of Clause 8.1 (Illegality), Clause 13 (Tax gross-up and indemnities),
Clause 14 (Increased Costs) including without limitation transferring its rights and
obligations under the Finance Documents to another Affiliate or Facility Office. |
| 16.1.2 | Clause
16.1.1 does not in any way limit the obligations of any Obligor under the Finance Documents. |
| 16.2 | Limitation
of liability |
| 16.2.1 | The
Company must indemnify each Finance Party promptly for any cost, loss or liability reasonably
incurred by that Finance Party as a result of steps taken by it under this Clause 16. |
| 16.2.2 | A
Finance Party is not obliged to take any steps under this Clause 16 if, in the opinion of
that Finance Party (acting reasonably), to do so might be prejudicial to it. |
The Company must pay to each Administrative
Party the amount of all costs and expenses (including legal fees) reasonably incurred by it in connection with the negotiation, preparation,
printing, execution, syndication and perfection of:
| 17.1.1 | this
Agreement and any other documents referred to in this Agreement; and |
| 17.1.2 | any
other Finance Documents executed after the Signing Date. |
If:
| 17.2.1 | an
Obligor requests an amendment, waiver or consent in connection with a Finance Document; or |
| 17.2.2 | an
amendment is required or expressly contemplated under a Finance Document, |
the Company must reimburse the Facility
Agent for the amount of all costs and expenses (including legal fees) reasonably incurred by it in responding to, evaluating, negotiating
or complying with that request or amendment.
The Company must pay to each Finance Party
the amount of all costs and expenses (including legal fees) incurred by that Finance Party in connection with the enforcement of, or
the preservation of any rights under, any Finance Document.
| 18. | Guarantee
and indemnity |
| 18.1 | Guarantee
and indemnity |
Each Guarantor irrevocably and unconditionally
jointly and severally:
| 18.1.1 | guarantees
to each Finance Party punctual performance by the Company of all of the Company's payment
obligations under the Finance Documents; |
| 18.1.2 | undertakes
with each Finance Party that whenever the Company does not pay any amount when due under
or in connection with any Finance Document, that Guarantor must immediately on demand pay
that amount as if it were the principal obligor in respect of that amount; and |
| 18.1.3 | agrees
with each Finance Party that if any obligation guaranteed by that Guarantor is or becomes
unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify
that Finance Party immediately on demand against any cost, loss or liability that Finance
Party incurs as a result of the Company not paying any amount which would, but for such unenforceability,
invalidity or illegality, have been payable by the Company under any Finance Document on
the date when it would have been due. The amount payable by a Guarantor under this indemnity
will not exceed the amount it would have had to pay under this Clause 18 if the amount claimed
had been recoverable on the basis of a guarantee. |
This guarantee is a continuing guarantee
and will extend to the ultimate balance of sums payable by any Obligor under the Finance Documents, regardless of any intermediate payment
or discharge in whole or in part.
If any discharge, release or arrangement
(whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is made by a Finance Party
in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation,
administration or otherwise, without limitation, then the liability of each Guarantor under this Clause 18 will continue or be reinstated
as if the discharge, release or arrangement had not occurred.
The obligations of each Guarantor under
this Clause 18 will not be affected by an act, omission, matter or thing which, but for this Clause 18, would reduce, release or prejudice
any of its obligations under this Clause 18 including (without limitation and whether or not known to it or any Finance Party):
| 18.4.1 | any
time, waiver or consent granted to, or composition with, any Obligor or other person; |
| 18.4.2 | the
release of any other Obligor or any other person under the terms of any composition or arrangement
with any creditor of any member of the Group; |
| 18.4.3 | the
taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to
perfect, take up or enforce, any rights against, or security over assets of, any Obligor
or other person; |
| 18.4.4 | any
non-presentation or non-observance of any formality or other requirement in respect of any
instrument or any failure to realise the full value of any security; |
| 18.4.5 | any
incapacity or lack of power, authority or legal personality of or dissolution or change in
the members or status of an Obligor or any other person; |
| 18.4.6 | any
amendment of any Finance Document or any other document or security including without limitation
any change in the purpose of, any extension of or any increase in any facility or the addition
of any new facility under any Finance Document or other document or security; |
| 18.4.7 | any
unenforceability, illegality, invalidity or non-provability of any obligation of any person
under any Finance Document or any other document or security; or |
| 18.4.8 | any
insolvency, resolution or similar proceedings. |
| 18.5 | Amendments
to the Finance Documents |
| 18.5.1 | Without
limiting Clause 18.4 (Waiver of defences), each Guarantor acknowledges that the Finance
Documents may from time to time be amended (and that term has the wide meaning given to it
by Clause 1.2 (Construction)). |
| 18.5.2 | Each
Guarantor confirms its intention that: |
| 18.5.3 | any
amendment to a Finance Document is within the scope of this guarantee; and |
| (A) | this guarantee
extends to any amount payable by the Company under or in connection with a Finance Document
as amended. |
| 18.5.4 | Each
Guarantor agrees that the confirmations in Clause 18.5.2 apply regardless of: |
| (A) | why or
how a Finance Document is amended (including the extent of the amendment and any change in
the parties); |
| (B) | whether
any amount payable by the Company under or in connection with the amended Finance Document
in any way relates to any amount that would or may have been payable had the amendment not
taken place; |
| (C) | the extent
to which the Guarantor's liability under this guarantee (whether present or future, actual
or contingent), or any right it may have as a result of entering into or performing its obligations
under this guarantee, changes or may change as a result of the amendment; and |
| (D) | whether
the Guarantor was aware of or consented to the amendment. |
| 18.6.1 | Each
Guarantor waives any right it may have of first requiring any Finance Party (or any trustee
or agent on its behalf) to: |
| (A) | proceed,
whether by virtue of the droit de discussion or otherwise, against or enforce any
other rights or security or claim payment from any person; and |
| (B) | divide,
apportion or reduce, whether by virtue of the droit de division or otherwise, any
liability under this Clause 18 with any person, |
before claiming from that Guarantor under
this Clause 18.
| 18.6.2 | This
waiver applies irrespective of any law or any provision of a Finance Document to the contrary. |
Until all amounts which may be or become
payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full, each Finance Party (or
any trustee or agent on its behalf) may:
| 18.7.1 | refrain
from applying or enforcing any other moneys, security or rights held or received by that
Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply
and enforce them in such manner and order as it sees fit (whether against those amounts or
otherwise) and no Guarantor will be entitled to the benefit of such moneys, security or rights;
and |
| 18.7.2 | hold
in an interest-bearing suspense account any moneys received from any Guarantor or on account
of any Guarantor's liability under this Clause 18. |
| 18.8 | Deferral
of Guarantor's rights |
| 18.8.1 | Until
all amounts which may be or become payable by the Obligors under or in connection with the
Finance Documents have been irrevocably paid in full or unless the Facility Agent otherwise
directs, no Guarantor will exercise any rights which it may have by reason of performance
by it of its obligations under the Finance Documents or by reason of any amount being payable,
or liability arising under this Clause 18: |
| (A) | to be indemnified
by an Obligor; |
| (B) | to claim
any contribution from any other guarantor of any Obligor's obligations under the Finance
Documents; |
| (C) | to take
the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights
of the Finance Parties under the Finance Documents or of any other guarantee or security
taken pursuant to, or in connection with, the Finance Documents by any Finance Party; |
| (D) | to bring
legal or other proceedings for an order requiring any Obligor to make any payment, or perform
any obligation, in respect of which any Guarantor has given a guarantee, undertaking or indemnity
under this Clause; |
| (E) | to exercise
any right of set-off against any Obligor; and/or |
| (F) | to claim
or prove as a creditor of any Obligor in competition with any Finance Party. |
| 18.8.2 | If
a Guarantor receives any benefit, payment or distribution in relation to such rights, it
must hold that benefit, payment or distribution to the extent necessary to enable all amounts
which may be or become payable to the Finance Parties by the Obligors under or in connection
with the Finance Documents to be repaid in full on trust for the Finance Parties and must
promptly pay or transfer them to the Facility Agent or as the Facility Agent may direct for
application in accordance with Clause 29 (Payment mechanics). |
| 18.9 | Release
of Guarantors' right of contribution |
If any Guarantor (a "Retiring
Guarantor") ceases to be a Guarantor in accordance with the terms of the Finance Documents for the purpose of any sale or other
disposal of that Retiring Guarantor, then on the date such Retiring Guarantor ceases to be a Guarantor:
| 18.9.1 | that
Retiring Guarantor is released by each other Guarantor from any liability (whether past,
present or future and whether actual or contingent) to make a contribution to any other Guarantor
arising by reason of the performance by any other Guarantor of its obligations under the
Finance Documents; and |
| 18.9.2 | each
other Guarantor waives any rights it may have by reason of the performance of its obligations
under the Finance Documents to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties under any Finance Document
or of any other security taken pursuant to, or in connection with, any Finance Document where
such rights or security are granted by or in relation to the assets of the Retiring Guarantor. |
This guarantee is in addition to and is
not in any way prejudiced by any other guarantee or security now or subsequently held by any Finance Party.
| 18.11.1 | This
guarantee does not apply to any liability to the extent that it would result in this guarantee
constituting unlawful financial assistance within the meaning of sections 678 or 679 of the
Companies Act 2006 or any equivalent and applicable provisions under the laws of the jurisdiction
of incorporation of the relevant Guarantor. |
| 18.11.2 | The
obligations of any Additional Guarantor are subject to any limitations set out in the Accession
Letter executed by that Additional Guarantor |
| 18.12.1 | In
this Agreement: |
"fraudulent
transfer law" means any applicable United States bankruptcy and State fraudulent transfer and conveyance statute and
any related case law;
"U.S.
Guarantor" means any Guarantor that is a U.S. Debtor; and
terms used in this Clause 18.12 are to be
construed in accordance with the fraudulent transfer laws.
| 18.12.2 | Each
U.S. Guarantor acknowledges that: |
| (A) | it will
receive valuable direct or indirect benefits as a result of the transactions financed by
the Finance Documents; |
| (B) | those benefits
will constitute reasonably equivalent value and fair consideration for the purpose of any
fraudulent transfer law; and |
| (C) | each Finance
Party has acted in good faith in connection with the guarantee given by that U.S. Guarantor
and the transactions contemplated by the Finance Documents. |
| 18.12.3 | Each
Finance Party agrees that each U.S. Guarantor's liability under this Clause 18.12 is
limited so that no obligation of, or transfer by, any U.S. Guarantor under this Clause 18.12
is subject to avoidance and turnover under any fraudulent transfer law. |
| 18.12.4 | Each
U.S. Guarantor represents and warrants to each Finance Party that: |
| (A) | the aggregate
amount of the debts and liabilities of the Group (taken as a whole and including its obligations
under the Finance Documents), is less than the aggregate value (being the lesser of fair
valuation and present fair saleable value) of the Group's assets; |
| (B) | the capital
of the Group (taken as a whole) is not unreasonably small; |
| (C) | the Group
(taken as a whole) has not incurred and does not intend to incur debts and liabilities beyond
its ability to pay as they mature; and |
| (D) | it has
not made a transfer or incurred any obligation under any Finance Document with the intent
to hinder, delay or defraud any of its present or future creditors. |
| 18.12.5 | Each
representation and warranty in this Clause 18.12: |
| (A) | is made
by each U.S. Guarantor on the Signing Date; |
| (B) | is deemed
to be repeated by: |
| (1) | each
Additional Guarantor on the date that Additional Guarantor becomes a U.S. Guarantor; and |
| (2) | each
U.S. Guarantor on the date of each Utilisation Request and the first day of each Interest
Period; and |
| (C) | is, when
repeated, applied to the circumstances existing at the time of repetition. |
The representations and warranties set
out in this Clause 19 are made by each Obligor or (if the relevant provision so states) the Company to each Finance Party on the dates
set out in Clause 19.19 (Times for making representations).
| 19.2.1 | It
is a limited liability company, duly incorporated and validly existing under the law of its
jurisdiction of incorporation. |
| 19.2.2 | It
and each of its Material Subsidiaries has the power to own its assets and carry on its business
as it is being conducted. |
The obligations expressed to be assumed
by it in each Finance Document to which it is a party are, subject to the Legal Reservations, legal, valid, binding and enforceable obligations.
| 19.4 | Non-conflict
with other obligations |
The entry into and performance by it of,
and the transactions contemplated by, the Finance Documents do not and will not conflict with:
| 19.4.1 | any
law or regulation applicable to it; |
| 19.4.2 | its
or any of its Material Subsidiaries' constitutional documents; or |
| 19.4.3 | any
agreement or instrument binding upon it or any of its Material Subsidiaries or any of its
or any of its Material Subsidiaries' assets, in each case save to the extent that they could
not reasonably be expected to have a Material Adverse Effect. |
It has the power to enter into and perform,
and has taken all necessary action to authorise its entry into and performance of, the Finance Documents to which it is a party and the
transactions contemplated by those Finance Documents.
| 19.6 | Validity
and admissibility in evidence |
Subject to the Legal Reservations, all
Authorisations required:
| 19.6.1 | 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 |
| 19.6.2 | 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.
| 19.7 | Governing
law and enforcement |
| (A) | irrevocable
submission by an Obligor under the Finance Documents to the jurisdiction to which it is stated
to be subject; and |
| (B) | agreement
by an Obligor as to the governing law of any Finance Document, |
is, subject to the Legal Reservations, legal,
valid and binding under the laws of its jurisdiction of incorporation.
| 19.7.2 | Any
judgment obtained in England in relation to a Finance Document will be, subject to the Legal
Reservations, recognised and be enforceable by the courts of its jurisdiction of incorporation. |
| 19.8.1 | The
Company is not required to make any Tax Deduction from any payment it may make under any
Finance Document to a Lender which is: |
| (1) | falling
within paragraph (a)(i) of the definition of UK Lender; or |
| (2) | except
where a Direction has been given under section 931 of the ITA in relation to the payment
concerned, falling within paragraph (a)(ii) of the definition of UK Lender; or |
| (3) | falling
within paragraph (b) of the definition of UK Lender; or |
| (B) | a Treaty
Lender and the payment is one specified in a direction given by the Commissioners of Revenue &
Customs under Regulation 2 of the Double Taxation Relief (Taxes on Income) (General) Regulations
1970 (SI 1970/488). |
| 19.8.2 | The
Original Guarantor is not required to make any Tax Deduction from: |
| (A) | any payment
it may make under any Finance Document to a Lender that has a UK source, which: |
| (1) | qualifies
for an exemption from UK withholding tax under the laws of the UK in respect of that payment;
or |
| (2) | qualifies
for full exemption from withholding tax under an applicable double tax treaty between the
UK and the jurisdiction of residence of that Lender and the payment is one specified in a
direction given by the Commissioners of Revenue & Customs under Regulation 2 of
the Double Taxation Relief (Taxes on Income) (General) Regulations 1970 (SI 1970/488); or |
| (B) | any payment
it may make under a Finance Document to a Lender which does not have a UK source. |
| 19.9 | No filing
or stamp taxes |
Under the laws of its jurisdiction of
incorporation it is not necessary that the Finance Documents be registered, filed, recorded, notarised or enrolled with any court or
other authority in that jurisdiction or that any stamp, registration, notarial or similar Taxes or fees be paid on or in relation to
them or the transactions contemplated by them.
| 19.10.1 | No
Event of Default is continuing or could reasonably be expected to result from its entry into,
or its performance of, or any transaction contemplated by, any Finance Document. |
| 19.10.2 | No
other event or circumstance is continuing which constitutes a default under any other agreement
or instrument which is binding on it (or any of its Subsidiaries) or to which any of its
(or any of its Subsidiaries') assets are subject to an extent or in a manner which has or
is reasonably likely to have a Material Adverse Effect. |
| 19.11 | No misleading
information |
| 19.11.1 | Any
material written factual information contained in or provided by any member of the Group
for the purposes of the Information Memorandum was true and accurate in all material respects
taken as a whole as at the date it was provided or as at the date (if any) at which it is
stated to be given. |
| 19.11.2 | Nothing
has occurred or been omitted from the Information Memorandum and no information has been
given or withheld that results in the information contained in the Information Memorandum
taken as a whole being untrue or misleading in any material respect. |
| 19.11.3 | All
other material written factual information provided by any member of the Group (or on its
behalf) to a Finance Party was true, accurate and complete in all material respects (taken
as a whole) as at the date it was provided or as at the date (if any) at which it is stated
to be given and is not misleading in any material respect. |
| 19.12 | Financial
statements |
| 19.12.1 | The
audited financial statements of the Company most recently delivered to the Facility Agent
(which, at the Signing Date, are the Original Financial Statements): |
| (A) | were prepared
in accordance with GAAP, consistently applied; and |
| (B) | fairly
presents its financial condition as at the date to which they were drawn up and operations
during the relevant financial year (consolidated, if applicable). |
| 19.12.2 | There
has been no material adverse change in the Company’s business or financial condition
(or the business or consolidated financial condition of the Group) since the date to which
the Original Financial Statements were drawn up. |
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.
| 19.14 | No proceedings
pending or threatened |
No litigation, arbitration or administrative
proceedings or investigations of or before any court, arbitral body or agency which are likely to be adversely determined and, if adversely
determined, could reasonably be expected to have a Material Adverse Effect has or have (to the best of its knowledge and belief) been
started or threatened against it or any of its Subsidiaries.
| 19.15 | Anti-Corruption
laws, Anti-Money Laundering laws, sanctions and Patriot Act |
| 19.15.1 | The
Company has taken reasonable measures to ensure compliance with Anti-Corruption Laws and
Anti-Money Laundering Laws. |
| 19.15.2 | None
of (i) the Company, any Subsidiary or any of their respective directors, or officers,
or (ii) to the actual knowledge of the Company, any agent or employee of the Company
or any Subsidiary that will act in any capacity in connection with or benefit from the Facility
established under this Agreement, is a Sanctioned Person. |
| 19.15.3 | No
Utilisation, use of proceeds or other transaction contemplated by this Agreement will violate
Anti-Corruption Laws, Anti-Money Laundering Laws or Sanctions. |
| 19.15.4 | The
Company and its Subsidiaries are in compliance in all material respects with the Patriot
Act. |
| 19.16 | Investment
Company Act status |
The Company is not an "investment
company" or required to register as such under the United States Investment Company Act of 1940, as amended, or subject to regulation
thereunder.
| 19.17 | Compliance
with U.S. regulations |
No ERISA Events have occurred with respect
to any Obligor or any of its ERISA Affiliates, except as would not reasonably be likely to have a Material Adverse Effect.
The Company is not directly engaged, principally
or as one of its important activities, in the business of purchasing or carrying Margin Stock, or extending credit for the purpose of
purchasing or carrying Margin Stock.
| 19.19 | Times
for making representations |
| 19.19.1 | The
representations and warranties set out in this Clause 19 are made by each Original Obligor
(or, if the relevant provision so states, the Company) on the Signing Date. |
| 19.19.2 | The
Repeating Representations are deemed to be made by each Obligor (or, if the relevant provision
so states, the Company) by reference to the facts and circumstances then existing on: |
| (A) | the date
of each Utilisation Request and the first day of each Interest Period; and |
| (B) | in the
case of an Additional Guarantor, on the date it becomes (or it is proposed that it becomes)
a Guarantor. |
| 20. | Information
undertakings |
The Company must supply to the Facility
Agent in sufficient copies for all the Lenders:
| 20.1.1 | as
soon as the same become available, but in any event within 90 days after the end of each
of its financial years falling after the Signing Date, its audited consolidated financial
statements for that financial year; and |
| 20.1.2 | as
soon as the same become available, but in any event within 45 days after each Quarter Date
falling after the Signing Date, its consolidated financial statements for that financial
quarter. |
| 20.2 | Compliance Certificate |
| 20.2.1 | The Company must supply to the Facility Agent a duly completed Compliance Certificate with each set of its financial statements delivered
to the Facility Agent under this Agreement. |
| 20.2.2 | A Compliance Certificate must be signed by one authorised signatory of the Company. |
| 20.3 | Requirements as to financial statements |
| 20.3.1 | The Company must ensure that each set of financial statements delivered under this Agreement fairly presents the financial condition
(consolidated or otherwise) of the relevant person as at the date to which those financial statements were drawn up. |
| 20.3.2 | The Company must ensure that each set of financial statements of an Obligor delivered under this Agreement is prepared using GAAP,
accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements
for the Original Guarantor unless, in relation to any set of financial statements, it notifies the Facility Agent that there has been
a change in GAAP, the accounting practices or reference periods and its auditors (or, if appropriate, the auditors of the relevant Obligor)
deliver to the Facility Agent: |
| (A) | a full description of any change necessary for those financial statements to reflect the GAAP, accounting practices and reference
periods on which the Original Guarantor's Original Financial Statements were prepared; and |
| (B) | sufficient information, in form and substance as may be reasonably required by the Facility Agent to enable the Finance Parties to
make a proper comparison between the financial position shown by the set of financial statements prepared on the changed basis and that
Obligor's most recent audited financial statements delivered to the Facility Agent under this Agreement. |
Any reference in this Agreement to those financial statements
will be construed as a reference to those financial statements as adjusted to reflect the basis on which the relevant Original Financial
Statements were prepared.
| 20.4 | Information – miscellaneous |
The Company must supply to the Facility Agent (in sufficient
copies for all the Lenders if the Facility Agent so requests):
| 20.4.1 | copies of all official shareholder notices (including notices of meetings, shareholder resolutions, annual reports, requests to convene
a shareholders' meeting and invitations to appoint proxies) despatched by the Company to its shareholders generally (or any class of them
in their capacity as such) and all documents despatched by the Company to its creditors generally (or any class of them), in each case
at the same time as they are despatched; |
| 20.4.2 | as soon as reasonably practicable on becoming aware of them, the details of any litigation, arbitration or administrative proceedings
(including, to the extent permitted by applicable law or regulation, any such litigation, arbitration or administrative proceedings which
relate to Sanctions) which are current, threatened or pending against any member of the Group and which are reasonably likely to be adversely
determined and, if so determined, could reasonably be expected to have a Material Adverse Effect; |
| 20.4.3 | together with the financial statements delivered in accordance with Clause 20.1.1 (Financial statements), a list of the Material
Subsidiaries as at the end of the Company's most recent financial year; and |
| 20.4.4 | as soon as reasonably practicable following request, such further information regarding the financial condition, business and operations
of any member of the Group as any Finance Party (through the Facility Agent) may reasonably request. |
| 20.5 | Notification of Default |
| 20.5.1 | Each Obligor must notify the Facility Agent of any Default (and the steps, if any, being taken to remedy it) promptly on becoming
aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor). |
| 20.5.2 | Promptly on request by the Facility Agent, the Company must supply to the Facility Agent a certificate, signed by an authorised signatory
on its behalf, certifying that, in so far as they are aware having made all due enquiries, no Default is continuing (or, if a Default
is continuing, specifying the Default and the steps, if any, being taken to remedy it). |
| 20.5.3 | Any certifications given by any director or senior officers under this Agreement are given without personal liability (other than
in the case of fraud, wilful deceit and fraudulent misconduct). |
| 20.6.1 | The Company 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 Company
and the Facility Agent (the "Designated Website") if: |
| (A) | the Facility Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information
by this method; |
| (B) | both the Company and the Facility Agent are aware of the address of and any relevant password specifications for the Designated Website;
and |
| (C) | the information is in a format previously agreed between the Company and the Facility Agent. |
If any Lender (a "Paper Form Lender")
does not agree to the delivery of information electronically, then the Facility Agent must notify the Company accordingly and the Company
must supply the information to the Facility Agent (in sufficient copies for each Paper Form Lender) in paper form. In any event,
the Company must supply the Facility Agent with at least one copy in paper form of any information required to be provided by it.
| 20.6.2 | The Facility Agent must supply each Website Lender with the address of and any relevant password specifications for the Designated
Website following designation of that website by the Company and the Facility Agent. |
| 20.6.3 | The Company must promptly on becoming aware of its occurrence notify the Facility Agent if: |
| (A) | the Designated Website cannot be accessed due to technical failure; |
| (B) | the password specifications for the Designated Website change; |
| (C) | any new information which is required to be provided under this Agreement is posted onto the Designated Website; |
| (D) | any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or |
| (E) | the Company 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. |
| 20.6.4 | If the Company notifies the Facility Agent under Clause 20.6.3(A) or Clause 20.6.3(E), all information to be provided by the
Company under this Agreement after the date of that notice must be supplied in paper form unless and until the Facility Agent and each
Website Lender is satisfied that the circumstances giving rise to the notification are no longer continuing. |
| 20.6.5 | Any Website Lender may request, through the Facility Agent, one paper copy of any information required to be provided under this Agreement
which is posted onto the Designated Website. The Company must comply with any such request within ten Business Days. |
| 20.7 | "Know your customer" checks |
| 20.7.1 | Subject to Clause 20.7.2, each Obligor must, promptly on request by any Finance Party, supply, or procure the supply of, any documentation
or other evidence reasonably requested by that Finance Party (whether for itself, or on behalf of any other Finance Party or any prospective
new Lender) to enable a Finance Party or prospective new Lender to carry out and be satisfied with the results of any "know your
customer" checks or other similar checks required under any applicable law or regulation in connection with the transactions contemplated
by the Finance Documents. |
| 20.7.2 | An Obligor is only required to supply any information under Clause 20.7.1 if the information is not already available to the relevant
Finance Party and the requirement arises as a result of: |
| (A) | the introduction of, or any change in (or in the interpretation, administration or application of), any law or regulation made after
the Signing Date; |
| (B) | any change in the status of an Obligor or any change in the composition of shareholders of an Obligor where a shareholder is not an
Obligor, in each case, after the Signing Date; or |
| (C) | a proposed assignment or transfer by a Lender of any of its rights and/or obligations under any Finance Document to a person that
is not a Lender before that assignment or transfer. |
| 20.7.3 | Each Lender must, promptly on request by the Facility Agent supply, or procure the supply of, any documentation or other evidence
reasonably requested by the Facility Agent (for itself) to enable the Facility Agent to carry out and be satisfied with the results of
any "know your customer" checks or other similar checks required under any applicable law or regulation in connection with the
transactions contemplated by the Finance Documents. |
In this Agreement:
"Adjusted Consolidated
EBITDA" means, in relation to a Measurement Period, Consolidated EBITDA for the period adjusted by:
| (a) | including the operating profit before interest, tax, depreciation, amortisation and impairment charges (calculated on a consistent
basis with Consolidated EBITDA) ("EBITDA") of a member of the Group or attributable to a business or assets acquired
during the Measurement Period for that part of the Measurement Period when it was not a member of the Group and/or the business or assets
were not owned by a member of the Group; and |
| (b) | excluding the EBITDA attributable to any member of the Group or to any business or assets sold during that Measurement Period. |
"Consolidated EBIT"
means, in relation to a Measurement Period, the aggregate of:
| (a) | the consolidated operating profits of the Group before finance costs and tax for that Measurement Period; |
| (b) | plus or minus the Group's share of the profits or losses of associates for that period (after finance costs and tax) and the Group's
share of the profits or losses of any joint ventures, |
taking no account of:
| (i) | any Exceptional Items; |
| (ii) | any unrealised gains or losses on any derivative or financial instrument (unless the derivative instrument is used to hedge an exposure
that itself is not excluded from the determination of Consolidated EBIT); and |
| (iii) | any income or charge attributable to a post-employment benefit scheme other than the current service costs and any past service costs
and curtailments and settlements attributable to the scheme. |
"Consolidated EBITDA"
means, in relation to a Measurement Period, Consolidated EBIT for that Measurement Period after adding back any depreciation and amortisation
and taking no account of any charge for impairment or any reversal of any previous impairment charge made in the period.
"Consolidated Eligible
Cash and Cash Equivalents" means (i) cash and cash equivalents as reported by the Company in its consolidated financial
statements delivered pursuant to Clause 20.1 (Financial statements), and (ii) any other debt, security or investment approved
by the Majority Lenders.
"Consolidated Total
Borrowings" means, in respect of the Group, at any time, the aggregate of the following liabilities (without double-counting)
calculated at the principal amount outstanding (or in the case of any guarantee, indemnity or similar assurance referred to in paragraph
(g) below, the maximum liability under the relevant instrument) (excluding any liabilities of Consolidated Structured Entities):
| (b) | any bond, note, debenture, loan stock or other similar instrument; |
| (c) | any indebtedness under a Finance Lease; |
| (d) | any moneys owing in connection with the sale or discounting of receivables (except to the extent that there is no recourse); |
| (e) | any indebtedness arising from any deferred payment agreements arranged primarily as a method of raising finance or financing the acquisition
of an asset; |
| (f) | any indebtedness arising in connection with any other transaction (including any forward sale or purchase agreement) which has the
commercial effect of a borrowing; and |
| (g) | any indebtedness of any person of a type referred to in the above paragraphs which is the subject of a guarantee, indemnity or similar
assurance against financial loss given by a member of the Group. |
"Consolidated Total
Net Borrowings" means at any time Consolidated Total Borrowings less Consolidated Eligible Cash and Cash Equivalents.
"Exceptional Items"
means any item of income or expense that represents:
| (a) | any gain or loss arising from: |
| (i) | write-downs of inventories to net realisable value or of property, plant and equipment to recoverable amount, and reversals of such
write-downs; |
| (ii) | restructuring the activities of the Group or any member of the Group and any reversals of any provision for the costs of restructuring
(including the cost of integration of any mergers and acquisitions); |
| (iii) | disposals of items of property, plant or equipment; |
| (iv) | disposals of investments; or |
| (v) | disposals or settlements of liabilities of any member of the Group that fall within the definition of Consolidated Total Borrowings; |
| (b) | any gain or loss of a highly unusual or non-recurring nature; |
| (c) | fair value changes and finance charges on contingent deferred consideration on business combinations or long-term remuneration plans
recognised as part of a business combination; or |
| (d) | any gain or loss arising from a transaction entered into otherwise than in the carrying on of the normal core business operations
of the Group. |
"Measurement Period"
means a period of 12 Months ending on each Quarter Date.
"Quarter Date"
means 31 March, 30 June, 30 September and 31 December in each calendar year.
| 21.2.1 | Except as provided to the contrary in this Agreement, an accounting term used in this Clause 21 is to be construed in accordance with
the principles applied in connection with the Original Guarantor's Original Financial Statements. |
| 21.2.2 | Any amount in a currency other than USD is to be taken into account at its USD equivalent calculated on the basis of: |
| (A) | the Facility Agent's spot rate of exchange for the purchase of the relevant currency in the London foreign exchange market with USD
at or about 11:00 a.m. on the day the relevant amount falls to be calculated; or |
| (B) | if the amount is to be calculated on the last day of a financial period of the Company, the relevant rates of exchange used by the
Company in, or in connection with, its financial statements for that period. |
| 21.2.3 | No item may be credited or deducted more than once in any calculation under this Clause 21. |
| 21.3.1 | Subject to Clauses 21.3.2 and 21.3.5, the Company must ensure that Consolidated Total Net Borrowings do not, at the end of each Measurement
Period ending on or after the Signing Date, exceed 3.0 times Adjusted Consolidated EBITDA for that Measurement Period. |
| 21.3.2 | Following completion of an acquisition by a member of the Group where the aggregate consideration payable by a member of the Group
exceeds USD100,000,000 during any Measurement Period, the Company may elect by written notice to the Facility Agent (which shall, promptly
upon receipt of such notice, notify the Lenders) that the maximum amount by which Consolidated Total Net Borrowings may exceed Adjusted
Consolidated EBITDA for that Measurement Period and the subsequent Measurement Period shall be increased by 0.5 times. |
| 21.3.3 | The Company may not exercise its rights under Clause 21.3.2 more than twice during the term of the Facility. |
| 21.3.4 | For the avoidance of doubt, there shall be no breach of the financial covenant described in Clause 21.3.1 where Adjusted Consolidated
EBITDA is a negative figure in respect of a Measurement Period and where Consolidated Total Net Borrowings are also equal to or less than
zero at the end of that Measurement Period. |
| 21.3.5 | This Clause 21.3 shall cease to apply for so long as a Rating Agency provides the Company with a Relevant Long-term Credit Rating
of Baa2/BBB or higher. |
Each Obligor agrees to be bound by the undertakings set out
in this Clause 22 relating to it and, where an undertaking is expressed to apply to other members of the Group, each Obligor must ensure
that its relevant Subsidiaries perform that undertaking, provided that for the purposes of this Clause 22, the Group shall not include
any Consolidated Structured Entities.
Each Obligor must promptly:
| 22.2.1 | obtain, comply with and do all that is necessary to maintain in full force and effect; and |
| 22.2.2 | upon request by the Facility Agent, supply certified copies to the Facility Agent of, |
any Authorisation required under any applicable law or regulation
to enable it to perform its obligations under the Finance Documents and to ensure, subject to the Legal Reservations, the legality, validity,
enforceability or admissibility in evidence in its jurisdiction of incorporation of any Finance Document.
Each Obligor must comply in all respects with all laws to
which it may be subject, if failure to comply would materially impair its ability to perform its obligations under the Finance Documents.
Each Obligor must ensure that its payment obligations under
the Finance Documents at all times rank at least pari passu with the claims of all its unsecured and unsubordinated creditors,
except for obligations mandatorily preferred by law applying to companies generally.
| 22.5.1 | In this Clause 22.5, "Quasi-Security Interest" means an arrangement or transaction described in Clause 22.5.3. |
| 22.5.2 | Except as provided below, no member of the Group may create or allow to exist any Security Interest over any of its assets. |
| 22.5.3 | Except as provided below, no member of the Group may: |
| (A) | sell, transfer or otherwise dispose of any of its assets to a person which is not a member of the Group on terms where they are or
may be leased to, re-acquired or acquired by a member of the Group; |
| (B) | sell, transfer or otherwise dispose of any of its receivables on recourse terms; |
| (C) | enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to
a combination of accounts; or |
| (D) | enter into any other preferential arrangement having a similar effect, |
in circumstances where the arrangement or transaction is entered
into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.
| 22.5.4 | Clauses 22.5.2 and 22.5.3 do not apply to any Security Interest or Quasi-Security Interest listed below: |
| (A) | any Security Interest or Quasi-Security Interest listed in Schedule 13 (Existing Security) except to the extent the principal
amount secured by that Security Interest or Quasi-Security Interest exceeds the amount stated in that Schedule; |
| (B) | any cash-management, netting or set-off arrangement entered into by any member of the Group in the ordinary course of its banking
arrangements; |
| (C) | any payment or close-out netting or set-off arrangement pursuant to any hedging transaction entered into by a member of the Group
for the purpose of: |
| (1) | hedging any risk to which any member of the Group is exposed in its ordinary course of trading; or |
| (2) | its interest rate or currency management operations which are carried out in the ordinary course of business and for non-speculative
purposes only, |
excluding, in each case, any Security Interest or Quasi-Security
Interest under a credit support arrangement in relation to a hedging transaction;
| (D) | any lien arising by operation of law or in the ordinary course of trading; |
| (E) | any Security Interest or Quasi-Security Interest over or affecting any asset acquired by a member of the Group after the Signing Date
if: |
| (1) | the Security Interest or Quasi-Security Interest was not created in contemplation of, or since, the acquisition of that asset by a
member of the Group; |
| (2) | 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 |
| (3) | the Security Interest or Quasi-Security Interest is removed or discharged as soon as commercially reasonable following the relevant
acquisition and in any event within six Months of the date of acquisition of that asset; |
| (F) | any Security Interest or Quasi-Security Interest over or affecting any asset of any company which becomes a member of the Group after
the Signing Date, where the Security Interest or Quasi-Security Interest is created before the date on which that company becomes a member
of the Group, if: |
| (1) | the Security Interest or Quasi-Security Interest was not created in contemplation of the acquisition of that company; |
| (2) | the principal amount secured has not increased in contemplation of or since the acquisition of that company; and |
| (3) | the Security Interest or Quasi-Security Interest is removed or discharged as soon as commercially reasonable following the relevant
acquisition and in any event within six Months of that company becoming a member of the Group; |
| (G) | any Security Interest or Quasi-Security Interest entered into pursuant to any Finance Document; |
| (H) | any Security Interest or Quasi-Security Interest arising as a result of a disposal which is permitted pursuant to Clause 22.6.2 (Disposals); |
| (I) | any Security Interest or Quasi-Security Interest arising under any retention of title, hire purchase or conditional sale arrangement
or arrangements having similar effect in respect of goods supplied to a member of the Group in the ordinary course of trading and on the
supplier's standard or usual terms and not arising as a result of any default or omission by any member of the Group; or |
| (J) | any Security Interest securing or Quasi-Security Interest relating to indebtedness the principal amount of which (when aggregated
with the principal amount of any other indebtedness which has the benefit of a Security Interest or Quasi-Security Interest given by any
member of the Group other than any permitted under paragraphs (A) to (I)) does not exceed USD50,000,000 or its equivalent in another
currency or currencies at any time. |
| 22.6.1 | Except as provided below, no member of the Group will, either in a single transaction or in a series of transactions (whether related
or not), dispose of any asset. |
| 22.6.2 | Clause 22.6.1 does not apply to any disposal: |
| (A) | made in the ordinary course of trading of the disposing entity; |
| (B) | of any assets by a member of the Group (other than the Company) to another member of the Group; |
| (C) | of assets in exchange for other assets comparable or superior as to type, value and quality; |
| (D) | of assets which are obsolete, redundant or no longer required for the Company or relevant member of the Group's business or operations; |
| (E) | arising as a result of any Security Interest or Quasi-Security Interest permitted in accordance with Clause 22.5.4 (Negative pledge); |
| (F) | required by law or regulation or any order of any governmental entity, provided that this does not result in an Event of Default; |
| (G) | of tax assets or losses payable by the Company or any member of the Group to any member of the Group; |
| (H) | arising in connection with the making of a lawful distribution; |
| (I) | of cash for any purpose not prohibited by any Finance Document; |
| (J) | with the consent of the Majority Lenders; or |
| (K) | of assets where the higher of the market value or consideration receivable (when aggregated with the higher of the market value or
consideration receivable for any other disposal not allowed under the preceding paragraphs) does not exceed an amount representing 10%
or more of the total assets of the Company (or its equivalent in another currency or currencies) in any financial year of the Company. |
| 22.7 | Restriction on Subsidiary Financial Indebtedness |
| 22.7.1 | Except as provided below, no member of the Group other than an Obligor may incur or permit to be outstanding any Financial Indebtedness. |
| 22.7.2 | Clause 22.7.1 does not apply to: |
| (A) | any Financial Indebtedness incurred under the Finance Documents; |
| (B) | any Financial Indebtedness owed by a member of the Group to another member of the Group; |
| (C) | any derivative transaction protecting against or benefiting from fluctuations in any rate or price entered into in the ordinary course
of business (but excluding transactions that are entered into for purely speculative purposes); |
| (D) | any Financial Indebtedness incurred under intra-day facilities for dealer accounts held by any member of the Group; or |
| (E) | other Financial Indebtedness which in aggregate does not exceed USD60,000,000 or its equivalent in another currency or currencies
at any time. |
| 22.8.1 | No member of the Group may enter into any amalgamation, demerger, merger or corporate reconstruction. |
| 22.8.2 | Clause 22.8.1 does not apply to: |
| (A) | any merger or corporate reconstruction between members of the Group, provided that if the Company enters
into such a merger or corporate reconstruction, the successor, surviving or transferee entity is the Company; |
| (B) | or any disposal permitted pursuant to Clause 22.6 (Disposals). |
The Company must ensure that no substantial change is made
to the general nature of the business of the Company or the Group from that carried on at the Signing Date other than as a result of one
or more disposals or mergers permitted under Clause 22.6 (Disposals) or Clause 22.8 (Mergers), respectively.
| 22.10 | Restriction of dividends |
Except as required by law or regulation, no member of the
Group shall make or enter into any contractual arrangement which would have the result of restricting the payment of dividends from any
member of the Group to another member of the Group.
| 22.11 | Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions |
| 22.11.1 | The Company will take reasonable measures to ensure compliance by it and its Subsidiaries with applicable Anti-Corruption Laws, Anti-Money
Laundering Laws and Sanctions. |
| 22.11.2 | The Company will not request any Loan, and the Company shall not use, and shall ensure that its Subsidiaries shall not use, the proceeds
of any Loan: |
| (A) | in violation of any Anti-Corruption Laws or Anti-Money Laundering Laws in any material respect; |
| (B) | for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person; or |
| (C) | in any manner that would result in the violation of any Sanctions applicable to any party hereto in any material respect. |
| 22.11.3 | The Company shall not (and the Company shall procure that its Subsidiaries will not), directly or knowingly indirectly, fund all or
any part of any repayment or prepayment of a Loan with proceeds derived from any transaction with or activity involving, a Sanctioned
Person or which would otherwise be in violation of Sanctions applicable to any party hereto in any material respect. |
| (A) | extend credit for the purpose, directly or indirectly, of buying or carrying Margin Stock or to refund indebtedness originally incurred
for such purpose; or |
| (B) | use any Loan, directly or indirectly, and whether immediately, incidentally or ultimately, to buy or carry Margin Stock or for any
other purpose in violation of the Margin Regulations. |
| 22.12.2 | Each Obligor must promptly upon becoming aware of it notify the Facility Agent of the occurrence of an ERISA Event that, individually
or when aggregated with all other ERISA Events, would have or would reasonably be expected to have a Material Adverse Effect. |
| 22.12.3 | An Obligor shall use commercially reasonable efforts to not allow, or permit any of its ERISA Affiliates to allow, any ERISA Event
to occur with respect to any Employee Plan to the extent that any ERISA Event, individually or when aggregated with all other ERISA Events,
would have a Material Adverse Effect. |
Each of the events or circumstances set out in this Clause
23 is an Event of Default (other than Clause 23.17 (Acceleration)).
An Obligor does not pay on the due date any amount payable
pursuant to a Finance Document in the manner and at the place and in the currency in which it is expressed to be payable, unless:
| 23.2.1 | its failure to pay is caused by: |
| (A) | administrative or technical error; or |
| (B) | a Disruption Event; and |
| 23.2.2 | payment is made within five Business Days of its due date. |
Any requirement of Clause 21 (Financial covenants)
is not satisfied.
| 23.4.1 | An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 23.2 (Non-payment),
Clause 23.3 (Financial covenants), or paragraph (a) of the definition of Sanctions Event). |
| 23.4.2 | No Event of Default under Clause 23.4.1 will occur if the failure to comply is capable of remedy and is remedied within 21 Business
Days of the earlier of (i) the Facility Agent giving notice to the Company of the failure to comply and (ii) any Obligor becoming
aware of the failure to comply. |
Any representation, warranty or statement made or deemed
to be made by an Obligor in the Finance Documents (other than those referred to in paragraph (b) of the definition of Sanctions Event)
or in any other document delivered by or on behalf of any Obligor under or in connection with any Finance Document is or proves to have
been incorrect or misleading in any material respect when made or deemed to be made, unless the circumstances giving rise to the misrepresentation,
breach of warranty or misstatement:
| 23.5.1 | are capable of remedy; and |
| 23.5.2 | are remedied within 21 Business Days of the earlier of the Facility Agent giving notice of the misrepresentation, breach of warranty
or misstatement to the Company and any Obligor becoming aware of the misrepresentation, breach of warranty or misstatement. |
| 23.6.1 | Any of the following occurs in respect of any Obligor or any Material Subsidiary: |
| (A) | any of its Financial Indebtedness is not paid when due (after the expiry of any originally applicable grace period and the obligation
to pay is not being disputed in good faith); |
| (B) | any of its Financial Indebtedness is validly declared to be or otherwise becomes due and payable before its specified maturity as
a result of an event of default (however described); or |
| (C) | any of its creditors becomes entitled to declare any of its Financial Indebtedness due and payable before its specified maturity as
a result of any event of default (however described). |
| 23.6.2 | No Event of Default will occur under Clause 23.6.1 if: |
| (A) | the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within all or any of Clauses 23.6.1(A) to
23.6.1(C) is less than USD30,000,000 (or its equivalent in any other currency or currencies); or |
| (B) | the Financial Indebtedness is intra-Group debt. |
| 23.7.1 | Any Obligor or any Material Subsidiary: |
| (A) | is unable or admits inability to pay its debts as they fall due; |
| (B) | is deemed or is declared for the purposes of any applicable law to be unable to pay its debts as they fall due; |
| (C) | suspends making payments on any of its debts; or |
| (D) | by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding any
Finance Party in its capacity as such) with a view to rescheduling any of its indebtedness. |
| 23.7.2 | A moratorium is declared in respect of any indebtedness of any Obligor or any Material Subsidiary. |
| 23.8 | Insolvency proceedings |
| 23.8.1 | Except as provided below, any corporate action, legal proceedings or other formal 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 any Obligor or any Material Subsidiary other than a solvent liquidation
or reorganisation of any Material Subsidiary; |
| (B) | a composition, compromise, assignment or arrangement with any creditor of any Obligor or any Material Subsidiary; |
| (C) | the appointment of a liquidator (other than in respect of a solvent liquidation), receiver, administrative receiver, administrator,
compulsory manager or other similar officer in respect of any other Obligor or any Material Subsidiary or any material part of its assets; |
| (D) | enforcement of any Security Interest over any material part of the assets of any Obligor or any Material Subsidiary; or |
| (E) | any analogous procedure or step is taken in any jurisdiction. |
| 23.8.2 | Clause 23.8.1 does not apply to a petition for winding-up presented by a creditor which is frivolous or vexatious or which is being
contested in good faith and with due diligence, and, in each case, is discharged, stayed or dismissed within 30 days of commencement. |
Any expropriation, attachment, sequestration, distress, execution
or analogous event affects any asset or assets of any Obligor or any Material Subsidiary having an aggregate value of USD25,000,000 and
is not discharged within 30 days of commencement.
| 23.10 | Cessation of business |
Any Obligor or any Material Subsidiary ceases, or threatens
to cease, to carry on business except as a result of one or more disposals or mergers allowed under this Agreement.
| 23.11 | Ownership of the Obligors |
An Obligor (other than the Company) is not or ceases to be
(directly or indirectly) a wholly-owned Subsidiary of the Company.
| 23.12.1 | It is or becomes unlawful for an Obligor to perform any of its obligations under the Finance Documents. |
| 23.12.2 | Subject to the Legal Reservations, any Finance Document is not effective in accordance with its terms or is alleged by an Obligor
to be ineffective in accordance with its terms in a manner that is a materially prejudicial to the interests of the Lenders (taken as
a whole). |
An Obligor repudiates a Finance Document or evidences an
intention to repudiate a Finance Document.
| 23.14 | Material adverse change |
Any event or series of events occurs which has or could reasonably
be expected to have a Material Adverse Effect.
Any ERISA Event shall have occurred and the liability of
any Obligor or its ERISA Affiliates, individually or when aggregated with all other ERISA Events, would have or would be reasonably expected
to have a Material Adverse Effect.
| 23.16 | United States Bankruptcy Laws |
| 23.16.1 | In this Clause 23.16: |
"U.S. Bankruptcy Law"
means the United States Bankruptcy Code or any other United States Federal or State bankruptcy, insolvency or similar law.
| 23.16.2 | Any of the following occurs in respect of a U.S. Debtor |
| (A) | it makes a general assignment for the benefit of creditors; |
| (B) | it commences a voluntary case or proceeding under any U.S. Bankruptcy Law; or |
| (C) | an involuntary case under any U.S. Bankruptcy Law is commenced against it and is not dismissed or stayed within 60 days after commencement
of the case; or |
| (D) | an order for relief or other order approving any case or proceeding is entered under any U.S. Bankruptcy Law. |
| 23.17.1 | If an Event of Default is continuing, the Facility Agent may, and must if so instructed by the Majority Lenders, by notice to the
Company: |
| (A) | cancel all or part of the Total Commitments; |
| (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; and/or |
| (C) | declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance
Documents be payable on demand by the Facility Agent acting on the instructions of the Majority Lenders, |
and any such notice will take effect in accordance with its
terms.
| 23.17.2 | If an Event of Default described in Clause 23.16 (United States Bankruptcy Laws) occurs, the Total Commitments will, if not
already cancelled under this Agreement, be immediately and automatically cancelled and all amounts outstanding under the Finance Documents
will be immediately and automatically due and payable, without the requirement of notice or any other formality. |
| 24. | Changes to the Lenders |
| 24.1 | Assignments and transfers by the Lenders |
Subject to the other provisions of this Clause 24, a Lender
(the "Existing Lender") may:
| 24.1.1 | assign any of its rights; or |
| 24.1.2 | transfer by novation any of its rights and obligations, |
under the Finance Documents to another bank or financial
institution (the "New Lender").
| 24.2 | Conditions of assignment or transfer |
| 24.2.1 | The prior written consent of the Company is required for an assignment or transfer unless the assignment or transfer is: |
| (A) | to another Lender or an Affiliate of a Lender (subject to Clause 24.2.3(B)); or |
| (B) | effected at a time when an Event of Default is continuing. |
| 24.2.2 | The consent of the Company to an assignment or transfer (if required) must not be unreasonably withheld or delayed. The Company will
be deemed to have given its consent ten Business Days after the Company is given notice of the request unless consent is expressly refused
by the Company within that time. |
| 24.2.3 | For the avoidance of the doubt: |
| (A) | the Company's withholding of consent on the basis of the credit rating of an assignee or transferee shall be deemed to be reasonable;
and |
| (B) | the Company may restrict transfers to any Affiliate of a Lender who does not, in the ordinary course of its business, lend facilities
of this type and does not have a long-term credit rating of at least BBB/Baa2. |
| 24.2.4 | An assignment will only be effective on: |
| (A) | receipt by the Facility Agent (whether in the Assignment Agreement or otherwise) of written confirmation from the New Lender (in form
and substance satisfactory to the Facility Agent) that the New Lender will, in relation to the assigned rights, assume obligations to
the other Parties equivalent to those it would have been under if it had been an Original Lender; and |
| (B) | performance by the Facility Agent of any "know your customer" checks or other similar checks required under any applicable
law or regulation in relation to such assignment to a New Lender, the completion of which the Facility Agent must notify to the Existing
Lender and the New Lender promptly. |
| 24.2.5 | If the consent of the Company is required for any assignment or transfer, the Facility Agent is not obliged to enter into a Transfer
Certificate or Assignment Agreement if the Company withholds its consent (irrespective of whether it is being reasonable in withholding
that consent). |
| 24.2.6 | A transfer will only be effective if the procedure set out in Clause 24.5 (Procedure for transfer) is complied with. |
| (A) | a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and |
| (B) | as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to make a
Tax Payment or a payment relating to Increased Costs, |
then the relevant Obligor need only make that Tax Payment or
payment relating to Increased Costs to the same extent that it would have been obliged to pay if the assignment, transfer or change had
not occurred. This Clause 24.2.7 will not apply:
| (C) | in respect of an assignment or transfer made as a result of Clause 16 (Mitigation by the Lenders); or |
| (D) | in relation to Clause 13.2 and 13.3 (Tax gross-up and indemnities) in respect of an assignment or transfer to a Treaty Lender
that has included a confirmation of its scheme reference number and its jurisdiction of tax residence in accordance with Clause 13.2.7(B)(2) (Tax
gross-up) if the Obligor making the payment has not made a Borrower DTTP Filing (as defined in Clause 13.1.1 (Definitions))
in respect of that Treaty Lender. |
| 24.2.8 | Each New Lender, by executing the relevant Transfer Certificate or Assignment Agreement, confirms that: |
| (A) | the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite
Lender or Lenders in accordance with this Agreement on or before the date on which the transfer or assignment becomes effective in accordance
with this Agreement; and |
| (B) | it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender. |
| 24.3 | Assignment, transfer and accordion accession fees |
Unless the Facility Agent otherwise agrees, a New Lender
or an Accession Lender must, on or before the date on which an assignment or transfer or Accordion Increase (as the case may be) takes
effect, pay to the Facility Agent (for its own account) a fee of USD3,500.
| 24.4 | Limitation of responsibility of Existing Lenders |
| 24.4.1 | Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a
New Lender for: |
| (A) | the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents; |
| (B) | the financial condition of any Obligor; |
| (C) | the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or |
| (D) | 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.
| 24.4.2 | Each New Lender confirms to the Existing Lender and the other Finance Parties that it: |
| (A) | has made (and must continue to make) its own independent investigation and assessment of the financial condition and affairs of each
Obligor and its related entities (including the nature and extent of any recourse against any Party or its assets) 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 |
| (B) | will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities while any amount
is or may be outstanding under the Finance Documents or any Commitment is in force. |
| 24.4.3 | Nothing in any Finance Document obliges an Existing Lender to: |
| (A) | accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred under this Clause
24; or |
| (B) | support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations
under the Finance Documents or otherwise. |
| 24.5 | Procedure for transfer |
| 24.5.1 | Subject to the conditions set out in Clause 24.2 (Conditions of assignment or transfer), a transfer is effected in accordance
with Clause 24.5.3 when the Facility Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender
and the New Lender. The Facility Agent must, subject to Clause 24.5.2, 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, execute that Transfer Certificate. |
| 24.5.2 | The Facility Agent is only obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once
it is satisfied with the results of any "know your customer" checks or other similar checks required under any applicable law
or regulation in relation to the transfer to such New Lender. |
| 24.5.3 | Subject to Clause 24.9 (Pro rata interest settlement), on the Transfer Date: |
| (A) | to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under
the Finance Documents, each of the Obligors and the Existing Lender will be released from further obligations towards one another under
the Finance Documents and their respective rights against one another under the Finance Documents will be cancelled (being the "Discharged
Rights and Obligations"); |
| (B) | each of the Obligors and the New Lender will assume obligations towards one another and/or acquire rights against one another which
differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same
in place of that Obligor and the Existing Lender; |
| (C) | each Administrative Party, the New Lender and other Lenders will 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 each Administrative Party and the Existing Lender will each be released from further
obligations to each other under the Finance Documents; and |
| (D) | the New Lender will become a Party as a "Lender". |
| 24.5.4 | Each Party (other than the Existing Lender and the New Lender) irrevocably authorises the Facility Agent to enter into and deliver
any duly completed Transfer Certificate on its behalf. |
| 24.6 | Procedure for assignment |
| 24.6.1 | Subject to the conditions set out in Clause 24.2 (Conditions of assignment or transfer), an assignment may be effected in accordance
with Clause 24.6.3 when the Facility Agent executes an otherwise duly completed Assignment Agreement delivered to it by the Existing Lender
and the New Lender. The Facility Agent must, subject to Clause 24.6.2, as soon as reasonably practicable after receipt by it of a duly
completed Assignment Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms
of this Agreement, execute that Assignment Agreement. |
| 24.6.2 | The Facility Agent is only obliged to execute an Assignment Agreement delivered to it by the Existing Lender and the New Lender once
it is satisfied with the results of any "know your customer" checks or other similar checks required under any applicable law
or regulation in relation to the assignment to such New Lender. |
| 24.6.3 | Subject to Clause 24.9 (Pro rata interest settlement), on the Transfer Date: |
| (A) | the Existing Lender will assign absolutely to the New Lender the rights under the Finance Documents expressed to be the subject of
the assignment in the Assignment Agreement; |
| (B) | the Existing Lender will be released by each Obligor and the other Finance Parties from the obligations owed by it (the "Relevant
Obligations") and expressed to be the subject of the release in the Assignment Agreement; |
| (C) | the New Lender will become a Party as a "Lender" and will be bound by obligations equivalent to the Relevant Obligations; |
| (D) | if the assignment relates only to part of the Existing Lender's participation in the outstanding Loans, that part will be separated
from the Existing Lender's participation in the outstanding Loans, made an independent debt and assigned to the New Lender as a whole
debt; and |
| (E) | the Facility Agent's execution of the Assignment Agreement as agent for the Company will constitute notice to the Company of the assignment. |
| 24.6.4 | Each Party (other than the Existing Lender and the New Lender) irrevocably authorises the Facility Agent to enter into and deliver
any duly completed Assignment Agreement on its behalf. |
| 24.6.5 | Lenders may utilise procedures other than those set out in this Clause 24.6 to assign their rights under the Finance Documents (but
not, without the consent of the relevant Obligor or unless in accordance with Clause 24.5 (Procedure for transfer), to obtain a
release by that Obligor from the obligations owed to that Obligor by the Lenders nor the assumption of equivalent obligations by a New
Lender) provided that they comply with the conditions set out in Clause 24.2 (Conditions of assignment or transfer). |
| 24.7 | Copy of Transfer Certificate, Assignment Agreement or Increase Confirmation to the Company |
The Facility Agent must, as soon as reasonably practicable
after it has executed a Transfer Certificate, an Assignment Agreement or an Increase Confirmation, send to the Company a copy of that
Transfer Certificate, Assignment Agreement or Increase Confirmation.
| 24.8 | Security over Lenders' rights |
In addition to the other rights provided to Lenders under
this Clause 24, each Lender may without consulting with or obtaining consent from any Obligor, at any time charge, assign or otherwise
create a Security Interest in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document
to secure obligations of that Lender to a federal reserve or central bank, except that no such charge, assignment or Security Interest
will:
| 24.8.1 | release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment
or Security Interest for the Lender as a party to any of the Finance Documents; or |
| 24.8.2 | require any payments to be made by an Obligor other than or in excess of, or grant to any person any more extensive rights than, those
required to be made or granted to the relevant Lender under the Finance Documents. |
| 24.9 | Pro rata interest settlement |
| 24.9.1 | If the Facility Agent has notified the Lenders that it is able to distribute interest payments on a "pro rata basis"
to Existing Lenders and New Lenders, then (in respect of any transfer pursuant to Clause 24.5 (Procedure for transfer) or any assignment
pursuant to Clause 24.6 (Procedure for assignment) the Transfer Date of which, in each case, is after the date of that notification
and is not on the last day of an Interest Period): |
| (A) | any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time will
continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date ("Accrued Amounts") and will
become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period
(or, if the Interest Period is longer than six Months, on the next of the dates which falls at six Monthly intervals after the first day
of that Interest Period); and |
| (B) | the rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts, so that: |
| (C) | when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and |
| (D) | the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 24.9, have
been payable to it on that date, but after deduction of the Accrued Amounts. |
| 24.9.2 | In this Clause 24.9, references to "Interest Periods" will be construed to include a reference to any other period
for accrual of fees. |
| 24.10 | Affiliates of Lenders |
| 24.10.1 | Each Lender may fulfil its obligations in respect of any Loan through an Affiliate if: |
| (A) | the relevant Affiliate is specified in this Agreement as a Lender or becomes a Lender by means of a Transfer Certificate or Assignment
Agreement in accordance with this Agreement; and |
| (B) | the Loan or Loans in which that Affiliate will participate are specified in this Agreement or in a notice given by that Lender to
the Facility Agent and the Company. |
In this event, the Lender and its Affiliate will participate
in such Loan or Loans in the manner provided for in the notice referred to in paragraph (B).
| 24.10.2 | If Clause 24.10.1 applies, the Lender and its Affiliate will be treated as having a single Commitment and a single vote, but, for
all other purposes, will be treated as separate Lenders. |
| 24.10.3 | Any Affiliate nominated under this Clause 24.10 must be notified to the Facility Agent. |
| 25. | Changes to the Obligors |
| 25.1 | Assignment and transfers by Obligors |
No Obligor may assign any of its rights or transfer any of
its rights and obligations under the Finance Documents without the prior consent of all the Lenders.
| 25.2 | Additional Guarantors |
| 25.2.1 | Subject to compliance with Clause 25.2.4, if a Subsidiary is to become an Additional Guarantor, the Company must notify the Facility
Agent (and the Facility Agent must notify the Lenders promptly of its receipt of that notice). That Subsidiary will, subject to Clause
25.2.2, become an Additional Guarantor if: |
| (A) | in the case of a Subsidiary that is not incorporated in the same jurisdiction as an existing Obligor, that Subsidiary has been approved
by all Lenders; |
| (B) | the Company delivers to the Facility Agent a duly completed and executed Accession Letter; and |
| (C) | the Facility Agent has received all of the documents and other evidence listed in Part B (Conditions precedent required to
be delivered by an Additional Guarantor) of Schedule 2 (Conditions precedent) in relation to that Subsidiary becoming
an Additional Guarantor, each in form and substance satisfactory to the Facility Agent. |
| 25.2.2 | The relevant Subsidiary will become an Additional Guarantor when the Facility Agent notifies the other Finance Parties and the Company
that it has received all of the documents and other evidence referred to in Clauses 25.2.1(B) and 25.2.1(C). The Facility Agent must
give this notification as soon as reasonably practicable. |
| 25.2.3 | Except to the extent that the Majority Lenders notify the Facility Agent to the contrary before the Facility Agent gives the notification
described in Clause 25.2.2, each Lender authorises (but does not require) the Facility Agent to give that notification. The Facility Agent
will not be liable for any cost, loss or liability whatsoever any person incurs as a result of the Facility Agent giving any such notification. |
| 25.2.4 | If the accession of an Additional Guarantor requires any Finance Party or prospective new Lender to carry out "know your customer"
checks or other similar checks under any applicable law or regulation in circumstances where the necessary information is not already
available to it, the Company must, promptly on request by any Finance Party, supply, or procure the supply of, any documentation or other
evidence reasonably requested by that Finance Party (whether for itself, or on behalf of any other Finance Party or any prospective new
Lender) to enable a Finance Party or prospective new Lender to carry out and be satisfied with the results of those checks. |
| 25.3 | Repetition of representations |
Delivery of an Accession Letter to the Facility Agent constitutes
confirmation by the relevant Subsidiary that the Repeating Representations are correct in relation to it as at the date of delivery as
if made by reference to the facts and circumstances then existing.
| 25.4 | Resignation of a Guarantor |
| 25.4.1 | The Company may request that a Guarantor ceases to be a Guarantor by delivering to the Facility Agent a Resignation Letter. |
| 25.4.2 | The Facility Agent must accept a Resignation Letter and notify the Company and the Lenders promptly of its acceptance if: |
| (A) | no Default is continuing or would result from the acceptance of the Resignation Letter (and the Company has confirmed this is the
case); |
| (B) | no amount owing by that Guarantor under any Finance Document is outstanding; and |
| (C) | all the Lenders have consented to the Company's request. |
| 25.4.3 | The Guarantor will cease to be a Guarantor when the Facility Agent gives the notification to the Company referred to in Clause 25.4.2. |
| 25.4.4 | In the case of the Original Guarantor only, the Original Guarantor shall cease to be a Guarantor and shall be released from its obligations
as a Guarantor under the Finance Documents upon the receipt by the Facility Agent of a duly completed Resignation Letter in respect of
the Original Guarantor together with a confirmation that: |
| (A) | the Original Guarantor has no outstanding obligations under the 2025 Senior Notes or any Financial Indebtedness incurred to refinance
the 2025 Senior Notes; and |
| (B) | no Default is continuing or would result from the resignation of the Original Guarantor. |
| 26. | Role of the Administrative Parties |
| 26.1.1 | Each other Finance Party appoints the Facility Agent to act as its agent under and in connection with the Finance Documents. |
| 26.1.2 | Each other Finance Party authorises the Facility Agent to: |
| (A) | perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically
given to the Facility Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities
and discretions; and |
| (B) | enter into and deliver each Finance Document expressed to be entered into by the Facility Agent. |
| 26.2.1 | The Facility Agent: |
| (A) | must exercise or refrain from exercising any right, power, authority or discretion vested in it as Facility Agent in accordance with
any instructions given to it by: |
| (1) | all Lenders if a Finance Document stipulates the matter is an all Lender decision; |
| (2) | the relevant Finance Party or group of Finance Parties if a Finance Document stipulates the matter is a decision for that Finance
Party or group of Finance Parties; and |
| (3) | in all other cases, the Majority Lenders; and |
| (B) | will not be liable for any act (or omission) if it acts (or refrains from taking any action) in accordance with paragraph (A). |
| 26.2.2 | The Facility Agent may request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance
Document stipulates that the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or
group of Finance Parties) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority
or discretion and it may refrain from acting unless and until it receives any instructions or clarification that it has requested. |
| 26.2.3 | Except in the case of decisions stipulated to be a matter for any other Finance Party or group of Finance Parties under the relevant
Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Facility Agent by the Majority
Lenders will override any conflicting instructions given by any other Party or Parties and will be binding on all Finance Parties. |
| 26.2.4 | Clause 26.2.1 does not apply: |
| (A) | where a contrary indication appears in a Finance Document; |
| (B) | where a Finance Document requires the Facility Agent to act in a specified manner or to take a specified action; and |
| (C) | in respect of any provision which protects the Facility Agent's own position in its personal capacity as opposed to its role of Facility
Agent including, without limitation, Clause 26.5 (No fiduciary duties) to Clause 26.10 (Exclusion of liability) and
Clause 26.14 (Confidentiality) to Clause 26.18 (Notice period). |
| 26.2.5 | If giving effect to instructions given by the Majority Lenders would (in the Facility Agent's opinion) have an effect equivalent to
an amendment or waiver referred to in Clause 35 (Amendments and waivers), the Facility Agent will not act in accordance with those
instructions unless it obtains consent to do so from each Party whose consent would have been required in respect of that amendment or
waiver. |
| 26.2.6 | The Facility Agent may refrain from acting in accordance with the instructions of any Finance Party or group of Finance Parties until
it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained
in the Finance Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with
those instructions. |
| 26.2.7 | Without prejudice to the remainder of this Clause 26.2, in the absence of instructions the Facility Agent may act (or refrain from
taking any action) as it considers to be in the best interests of all the Finance Parties. |
| 26.2.8 | The Facility Agent is not authorised to act on behalf of a Finance Party (without first obtaining that Finance Party's consent) in
any legal or arbitration proceedings relating to any Finance Document. |
| 26.3 | Duties of the Facility Agent |
| 26.3.1 | The duties, obligations and responsibilities of the Facility Agent under the Finance Documents are solely mechanical and administrative
in nature. |
| 26.3.2 | Subject to Clause 26.3.3, the Facility Agent must promptly forward to a Party the original or a copy of any document which is delivered
to the Facility Agent for that Party by any other Party. |
| 26.3.3 | Without prejudice to Clause 24.7 (Copy of Transfer Certificate, Assignment Agreement or Increase Confirmation to the Company),
Clause 26.3.2 does not apply to any Transfer Certificate, Assignment Agreement or Increase Confirmation. |
| 26.3.4 | Except where a Finance Document specifically provides otherwise, the Facility Agent is not obliged to review or check the adequacy,
accuracy or completeness of any document it forwards to another Party. |
| 26.3.5 | If the Facility Agent receives notice from a Party referring to any Finance Document, describing a Default and stating that the circumstance
described is a Default, it must promptly notify the other Finance Parties. |
| 26.3.6 | If the Facility Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party
(other than an Administrative Party) under this Agreement, it must promptly notify the other Finance Parties. |
| 26.3.7 | The Facility Agent has only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it
is a party (and no others will be implied). |
| 26.4 | Role of the Arrangers |
Except where a Finance Document specifically provides otherwise,
no Arranger has any obligations of any kind to any other Party under or in connection with any Finance Document.
| 26.5.1 | Nothing in any Finance Document makes an Administrative Party a trustee or fiduciary of any other person. |
| 26.5.2 | No Administrative Party will be bound to account to any other Finance Party for any sum or the profit element of any sum received
by it for its own account. |
| 26.6 | Business with the Group |
| 26.6.1 | Each Administrative Party may accept deposits from, lend money to and generally engage in any kind of banking or other business with
any member of the Group or its related entities. |
| 26.6.2 | If it is also a Lender, each Administrative Party has the same rights and powers under the Finance Documents as any other Lender and
may exercise those rights and powers as though it were not an Administrative Party. |
| 26.6.3 | Each Administrative Party may carry on any business with any member of the Group or its related entities (including acting as an agent
or a trustee in connection with any other financing). |
| 26.7 | Rights and discretions |
| 26.7.1 | The Facility Agent may: |
| (A) | rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised; |
| (1) | any instructions it receives from the Majority Lenders, any Finance Party or any group of Finance Parties are duly given in accordance
with the terms of the Finance Documents; and |
| (2) | unless it has received notice of revocation, that those instructions have not been revoked; and |
| (C) | without prejudice to the generality of paragraph (B), rely on a certificate from any person: |
| (1) | as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or |
| (2) | to the effect that the person approves of any particular dealing, transaction, step, action or thing, |
| (3) | as sufficient evidence that that is the case and, in the case of paragraph (1), may assume the truth and accuracy of that certificate. |
| 26.7.2 | The Facility Agent may assume (unless it has received notice to the contrary in its capacity as Facility Agent) that: |
| (A) | no Default has occurred (unless it has actual knowledge of a Default arising under Clause 23.2 (Non-payment)); |
| (B) | any right, power, authority or discretion vested in any Party or any group of Finance Parties has not been exercised; and |
| (C) | any notice or request made by the Company (other than a Utilisation Request) is made on behalf of and with the consent and knowledge
of all the Obligors. |
| 26.7.3 | The Facility Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional
advisers or experts selected by it (including those representing a Party other than the Facility Agent). |
| 26.7.4 | Without prejudice to the generality of Clause 26.7.3 or Clause 26.7.5, the Facility Agent may at any time engage and pay for the services
of any lawyers to act as independent counsel to the Facility Agent (and so separate from any lawyers instructed by the Lenders) if the
Facility Agent, in its reasonable opinion, deems this to be necessary. |
| 26.7.5 | The Facility Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers
or experts (whether obtained by the Facility Agent or by any other Party) and will not be liable for any cost, loss or liability whatsoever
any person incurs or any diminution in value arising as a result of the Facility Agent so relying. |
| 26.7.6 | Each Administrative Party may act in relation to the Finance Documents through its officers, employees and agents. |
| 26.7.7 | Except where a Finance Document specifically provides otherwise, the Facility Agent may disclose to any other Party any information
it reasonably believes it has received as the Facility Agent under the Finance Documents. |
| 26.7.8 | Without prejudice to the generality of Clause 26.7.7 above, the Facility Agent: |
| (B) | on the written request of the Company or the Majority Lenders shall, as soon as reasonably practicable, disclose, |
the identity of a Defaulting Lender to the Company and to the
other Finance Parties.
| 26.7.9 | Notwithstanding any other provision of any Finance Document to the contrary: |
| (A) | no Administrative Party is obliged to do or omit to do anything (including disclosing any information) 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 or otherwise
be actionable by any person; and |
| (B) | an Administrative Party may do anything which, in its opinion, is necessary or desirable to comply with any law or regulation. |
| 26.7.10 | Notwithstanding any other provision of any Finance Document to the contrary, no Administrative Party is obliged to expend or risk
its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise
of any right, power, authority or discretion if it has grounds for believing the repayment of those funds or adequate indemnity against,
or security for, that risk or liability is not reasonably assured to it. |
| 26.8 | Responsibility for documentation |
| 26.8.1 | No Administrative Party is responsible or liable for: |
| (A) | the adequacy, accuracy or completeness of any statement or information (whether oral or written) made, given or supplied by any person
in or in connection with any Finance Document or the Information Memorandum or 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; |
| (B) | the legality, validity, effectiveness, adequacy, completeness or enforceability of any Finance Document or any other agreement, arrangement
or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; or |
| (C) | any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use
of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise. |
| 26.8.2 | Except as provided above, the Facility Agent has no duty: |
| (A) | either initially or on a continuing basis to provide any Lender with any credit or other information concerning the risks arising
under or in connection with the Finance Documents (including any information relating to the financial condition or affairs of any Obligor
or its related entities or the nature or extent of recourse against any Party or its assets) whether coming into its possession before,
on or after the Signing Date; or |
| (B) | unless specifically requested to do so by a Lender in accordance with a Finance Document, to request any certificate or other document
from any Obligor. |
The Facility Agent is not obliged to monitor or enquire as
to:
| 26.9.1 | whether a Default has occurred; |
| 26.9.2 | the performance, default or any breach by any Party of its obligations under any Finance Document; or |
| 26.9.3 | whether any other event specified in any Finance Document has occurred. |
| 26.10 | Exclusion of liability |
| 26.10.1 | Without limiting Clause 26.10.2 (and without prejudice to any other provision of any Finance Document excluding or limiting the liability
of any Administrative Party), no Administrative Party will be liable (whether in contract, tort or otherwise) for: |
| (A) | any cost, loss or liability whatsoever any person incurs or any diminution in value arising as a result of the Administrative Party
taking or not taking any action under or in connection with any Finance Document, unless directly caused by its gross negligence, wilful
misconduct or fraud; |
| (B) | exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Finance Document
or any other agreement, arrangement or document entered into or made under or in connection with, or executed in anticipation of, any
Finance Document, other than by reason of its gross negligence, wilful misconduct or fraud; or |
| (C) | without prejudice to the generality of paragraphs (A) and (B) above, any cost, loss or liability whatsoever any person incurs
or any diminution in value (whether caused by the Administrative Party's negligence, gross negligence or any other category of liability
whatsoever, but not including any claim based on fraud of the Administrative Party) arising as a result of: |
| (1) | any act, event or circumstance not reasonably within its control; or |
| (2) | the general risks of investment in, or the holding of assets in, any jurisdiction, |
including (in each case and without limitation) any such
cost, loss, liability or diminution in value arising as a result of:
| (a) | nationalisation, expropriation or other governmental action; |
| (b) | any regulation, currency restriction, devaluation or fluctuation; |
| (c) | market conditions affecting the execution or settlement of transactions or the value of assets (including any Disruption Event); |
| (d) | breakdown, failure or malfunction of any third party transport, telecommunications, computer services or other systems; |
| (e) | any natural disaster or act of God; |
| (f) | war, terrorism, insurrection or revolution; or |
| (g) | any strike or industrial action. |
| 26.10.2 | No Party (other than the relevant Administrative Party) may take any proceedings against any officer, employee or agent of an Administrative
Party in respect of any claim it might have against that Administrative Party or in respect of any act or omission of any kind by that
officer, employee or agent in relation to any Finance Document. |
| 26.10.3 | Any officer, employee or agent of an Administrative Party may enforce and enjoy the benefit of any Clause which expressly confers
rights on it, subject to Clause 1.3.2 (Third party rights) and the provisions of the Third Parties Act. |
| 26.10.4 | The Facility 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 Facility Agent if it 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 it for that purpose. |
| 26.10.5 | (A) Nothing in this Agreement obliges any Administrative Party to: |
| (1) | perform any "know your customer" checks or other similar checks in relation to the identity of any person; or |
| (2) | check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Finance Party, |
on behalf of any Finance Party.
| (B) | Each Finance Party confirms to each Administrative Party that it is solely responsible for any "know your customer" checks
or other similar checks it is required to carry out and that it may not rely on any statement in relation to those checks made by any
Administrative Party. |
| 26.10.6 | Without prejudice to any other provision of any Finance Document excluding or limiting the liability of any Administrative Party,
any liability of an Administrative Party arising under or in connection with any Finance Document is limited to the amount of actual loss
suffered (as determined by reference to the date of that Administrative Party's default or, if later, the date on which the loss arises
as a result of the default) but without reference to any special conditions or circumstances known to that Administrative Party at any
time which increase the amount of that loss. In no event will an Administrative Party be liable for any loss of profits, goodwill, reputation,
business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not that Administrative
Party was advised of the possibility of such loss or damages. |
| 26.11 | Lenders' indemnity to the Facility Agent |
| 26.11.1 | Without limiting the liability of any Obligor under the Finance Documents, each Lender must (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 before their reduction to zero)
indemnify the Facility Agent against any cost, loss or liability (including, without limitation, for negligence or any other category
of liability whatsoever) incurred by the Facility Agent (other than by reason of the Facility Agent's gross negligence, wilful misconduct
or fraud) (or, in the case of any cost, loss or liability pursuant to Clause 29.11 (Disruption to payment systems), notwithstanding
the Facility Agent's negligence, gross negligence or any other category of liability whatsoever, but not including any claim based on
the fraud of the Facility Agent) in acting as Facility Agent under the Finance Documents (unless the Facility Agent has been reimbursed
by an Obligor pursuant to a Finance Document). |
| 26.11.2 | Subject to Clause 26.11.3, the Company must immediately on demand reimburse any Lender for any payment that Lender makes to the Facility
Agent under Clause 26.11.1. |
| 26.11.3 | Clause 26.11.2 does not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates
to a liability of the Facility Agent to an Obligor. |
| 26.12 | Resignation of the Facility Agent |
| 26.12.1 | The Facility Agent may resign and appoint one of its Affiliates (acting through an office in the UK) as its successor by giving notice
to the other Finance Parties and the Company. |
| 26.12.2 | Alternatively, the Facility Agent may resign by giving 30 days' notice to the other Finance Parties and the Company, in which case
the Majority Lenders (after consultation with the other Finance Parties and the Company) may appoint a successor Facility Agent. |
| 26.12.3 | If the Majority Lenders have not appointed a successor Facility Agent in accordance with Clause 26.12.2 within 20 days after notice
of resignation was given, the retiring Facility Agent (after consultation with the other Finance Parties and the Company) may appoint
a successor Facility Agent. |
| 26.12.4 | If the Facility Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain
as agent and the Facility Agent is entitled to appoint a successor Facility Agent under Clause 26.12.3, the Facility Agent may (subject
to the prior consent of the Company) agree with the proposed successor Facility Agent amendments to this Clause and any other term of
this Agreement or any other Finance Document dealing with the rights or obligations of the Facility Agent consistent with then current
market practice for the appointment and protection of corporate trustees together with any reasonable amendments to the facility agency
fee payable under this Agreement which are consistent with the successor Facility Agent's normal fee rates and those amendments will bind
the Parties. |
| 26.12.5 | The retiring Facility Agent must, at its own cost: |
| (A) | make available to the successor Facility Agent any documents and records and provide any assistance the successor Facility Agent may
reasonably request for the purposes of performing its functions as the Facility Agent under the Finance Documents; and |
| (B) | enter into and deliver to the successor Facility Agent those documents and effect any registrations as may be reasonably required
for the transfer or assignment of all of its rights and benefits under the Finance Documents to the successor Facility Agent. |
| 26.12.6 | The Facility Agent's resignation will only take effect on the appointment of a successor. |
| 26.12.7 | When its resignation takes effect: |
| (A) | the retiring Facility Agent will be discharged from any further obligation in respect of the Finance Documents (other than its obligations
under Clause 26.12.5) but will remain entitled to the benefit of Clause 15.3 (Indemnity to the Facility Agent) and this Clause
26; |
| (B) | the Company must immediately pay to the retiring Facility Agent any facility agency fees that have accrued for the account of the
retiring Facility Agent and no further agency fees will accrue for the account of the retiring Facility Agent; and |
| (C) | any successor and each of the other Parties will have the same rights and obligations among themselves as they would have had if such
successor had been an original Party. |
| 26.12.8 | The Facility Agent shall resign in accordance with Clause 26.12.2 (and, to the extent applicable, shall use reasonable endeavours
to appoint a successor Facility Agent pursuant to Clause 26.12.3) if on or after the date which is three months before the earliest FATCA
Application Date relating to any payment to the Facility Agent under the Finance Documents, either: |
| (A) | the Facility Agent fails to respond to a request under Clause 13.8 (FATCA information) and the Company or a Lender reasonably
believes that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; |
| (B) | the information supplied by the Facility Agent pursuant to Clause 13.8 (FATCA information) indicates that the Facility Agent
will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or |
| (C) | the Facility Agent notifies the Company and the Lenders that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt
Party on or after that FATCA Application Date, |
and, in each case, the Company or a Lender reasonably believes
that a Party will be required to make a FATCA Deduction that would not be required if the Facility Agent were a FATCA Exempt Party, and
the Company or that Lender, by notice to the Facility Agent, requires it to resign.
| 26.13 | Replacement of the Facility Agent |
| 26.13.1 | After consultation with the Company, the Majority Lenders may, by giving 30 days' notice to the Facility
Agent (or, at any time the Facility Agent is an Impaired Agent, by giving any shorter notice determined by the Majority Lenders) replace
the Facility Agent by appointing a successor Agent (acting through an office in the United Kingdom or the Republic of Ireland). |
| 26.13.2 | The retiring Facility Agent shall (at its own cost if it is an Impaired Agent and otherwise at
the expense of the Lenders) make available to the successor Facility Agent such documents and records and provide such assistance as the
successor Facility Agent may reasonably request for the purposes of performing its functions as Facility Agent under the Finance Documents. |
| 26.13.3 | The appointment of the successor Facility Agent shall take effect on the date specified in the
notice from the Majority Lenders to the retiring Facility Agent. As from this date, the retiring Facility Agent shall be discharged from
any further obligation in respect of the Finance Documents (other than its obligations under Clause 26.13.2 but shall remain entitled
to the benefit of Clause 15.3 (Indemnity to the Facility Agent) and this Clause 26 (and any agency fees for the account of the
retiring Facility Agent shall cease to accrue from (and shall be payable on) that date). |
| 26.13.4 | Any successor Facility Agent 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. |
| 26.14.1 | In acting as agent for the Finance Parties, the Facility Agent will be regarded as acting through its agency division which will be
treated as a separate entity from any other of its divisions or departments. |
| 26.14.2 | If information is received by another division or department of the Facility Agent, it may be treated as confidential to that division
or department and the Facility Agent will not be deemed to have notice of it. |
| 26.14.3 | The Facility Agent is not obliged to disclose to any person any confidential information supplied to it by or on behalf of a member
of the Group solely for the purpose of evaluating whether any waiver or amendment is required in respect of any term of the Finance Documents. |
| 26.15 | Relationship with the Lenders |
| 26.15.1 | Subject to Clause 24.9 (Pro rata interest settlement), the Facility Agent may treat the person shown in its records as Lender
at the opening of business (in the place of the Facility Agent's principal office as notified to the Finance Parties from time to time)
as the Lender acting through its Facility Office: |
| (A) | entitled to or liable for any payment due under any Finance Document on that day; and |
| (B) | entitled to receive and act on any notice, request, document or communication or make any decision or determination under any Finance
Document made or delivered on that day, |
unless it has received not less than five Business Days' notice
from that Lender to the contrary in accordance with the terms of this Agreement.
| 26.15.2 | The Facility Agent may at any time, and must if requested to do so by the Majority Lenders, convene a meeting of the Lenders. |
| 26.15.3 | (A) |
Any Lender may by notice to the Facility Agent appoint a person to receive on its behalf all notices, communications, information and
documents to be made or despatched to that Lender under the Finance Documents. |
| (1) | must contain the address and (where communication by electronic mail or other electronic means is permitted under this Agreement)
electronic mail address and/or any other information required to enable the transmission of information by that means (and, in each case,
the department or officer, if any, for whose attention communication is to be made); and |
| (2) | will be treated as a notification of a substitute address, electronic mail address (or such other information), and department or
officer, by that Lender for the purposes of the Finance Documents. |
| (C) | The Facility Agent is entitled to treat such person as the person entitled to receive all such notices, communications, information
and documents as though that person were that Lender. |
| 26.16 | Credit appraisal by the Lenders |
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document, each Lender confirms to the Administrative Parties 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 without limitation:
| 26.16.1 | the financial condition, status and nature of each member of the Group; |
| 26.16.2 | 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; |
| 26.16.3 | 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 |
| 26.16.4 | the adequacy, accuracy or completeness of the Information Memorandum and any other information provided by the Facility Agent, any
other Party or by any other person under or in connection with any Finance Document, the transactions contemplated by any Finance Document
or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance
Document. |
| 26.17 | Deduction from amounts payable by the Facility Agent |
If any Party owes an amount to the Facility Agent under the
Finance Documents, the Facility Agent may, after giving notice to that Party, deduct an amount not exceeding that amount from any payment
to that Party which the Facility 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 will be regarded as having received
the amount so deducted.
Unless expressly provided to the contrary, where this Agreement
specifies a minimum period of notice to be given to the Facility Agent, the Facility Agent may, at its discretion, accept a shorter notice
period.
| 26.19 | Amounts paid in error |
| 26.19.1 | If the Facility Agent pays an amount to another Party and the Facility Agent notifies that Party that such payment was an Erroneous
Payment then the Party to whom that amount was paid by the Facility Agent shall on demand refund the same to the Facility Agent together
with interest on that amount from the date falling three Business Days after the date of notification by the Facility Agent to the date
of receipt by the Facility Agent, calculated by the Facility Agent to reflect its cost of funds. |
| (A) | the obligations of any Party to the Facility Agent; nor |
| (B) | the remedies of the Facility Agent, |
(whether arising under this Clause 26.19 or otherwise) which
relate to an Erroneous Payment will be affected by any act, omission, matter or thing which, but for this Clause 26.19.2, would reduce,
release or prejudice any such obligation or remedy (whether or not known by the Facility Agent or any other Party).
| 26.19.3 | All payments to be made by a Party to the Facility Agent (whether made pursuant to this Clause 26.19 or otherwise) which relate to
an Erroneous Payment shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim. |
| 26.19.4 | In this Agreement, "Erroneous Payment" means a payment of an amount by the Facility Agent to another Party which the Facility
Agent determines (in its sole discretion) was made in error. |
| 27. | Conduct of business by the Finance Parties |
No provision of any Finance Document will:
| 27.1.1 | interfere with the right of any Finance Party to arrange its affairs (Tax or otherwise) in whatever manner it thinks fit; |
| 27.1.2 | 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 |
| 27.1.3 | oblige any Finance Party to disclose any information relating to its affairs (Tax or otherwise) or any computations in respect of
Tax. |
| 28. | Sharing among the Finance Parties |
| 28.1 | Payments to Finance Parties |
If a Finance Party (a "Recovering Finance Party")
receives or recovers any amount from an Obligor other than in accordance with Clause 29 (Payment mechanics) and applies that amount
to a payment due under a Finance Document, then:
| 28.1.1 | the Recovering Finance Party must, within three Business Days, notify details of the receipt or recovery to the Facility Agent; |
| 28.1.2 | the Facility Agent must determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have
received had the receipt or recovery been received or made by the Facility Agent and distributed in accordance with Clause 29 (Payment
mechanics), without taking account of any Tax which would be imposed on the Facility Agent in relation to the receipt, recovery or
distribution; and |
| 28.1.3 | the Recovering Finance Party must pay to the Facility Agent an amount (the "Sharing Payment") equal to that receipt
or recovery less any amount which the Facility Agent determines may be retained by the Recovering Finance Party as its share of any payment
to be made, in accordance with Clause 29.6 (Partial payments). |
| 28.2 | Redistribution of payments |
The Facility Agent must treat the Sharing Payment as if it
had been paid by the relevant Obligor and distribute it between the Finance Parties (other than the Recovering Finance Party) (the "Sharing
Finance Parties") in accordance with Clause 29.6 (Partial payments) towards the obligations of that Obligor to the Sharing
Finance Parties.
| 28.3 | Recovering Finance Party's rights |
| 28.3.1 | On a distribution by the Facility Agent under Clause 28.2 (Redistribution of payments), the Recovering Finance Party will be
subrogated to the rights of the Finance Parties which have shared in that redistribution. |
| 28.3.2 | If and to the extent that the Recovering Finance Party is not able to rely on its rights under Clause 28.3.1, the relevant Obligor
will owe the Recovering Finance Party a debt equal to the Sharing Payment which is immediately due and payable. |
| 28.4 | Reversal of redistribution |
If any part of the Sharing Payment received or recovered
by a Recovering Finance Party becomes repayable and is repaid by that Recovering Finance Party, then:
| 28.4.1 | each Sharing Finance Party must, on request of the Facility Agent, pay to the Facility Agent for the 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) (the "Redistributed Amount"); |
| 28.4.2 | at the time of the request by the Facility Agent under Clause 28.4.1, the Sharing Finance Party will be subrogated to the rights of
the Recovering Finance Party in respect of the relevant Redistributed Amount; and |
| 28.4.3 | if and to the extent that the Sharing Finance Party is not able to rely on its rights under Clause 28.4.2 as between the relevant
Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been
paid by that Obligor. |
| 28.5.1 | This Clause 28 will not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this
Clause 28, have a valid and enforceable claim against the relevant Obligor. |
| 28.5.2 | 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: |
| (A) | it notified that other Finance Party of the legal or arbitration proceedings; and |
| (B) | 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. |
| 29.1 | Payments to the Facility Agent |
| 29.1.1 | On each date on which a Party is required to make a payment to the Facility Agent under a Finance Document, that Party must make the
payment available to the Facility 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 Facility Agent to the Party concerned as being customary at the time for settlement of transactions
in the relevant currency in the place of payment. |
| 29.1.2 | Unless a Finance Document specifies that payments under it are to be made in another manner, each payment must be made to such account: |
| (A) | in the principal financial centre of the country of the relevant currency; or |
| (B) | in relation to a payment in euro, in the principal financial centre in such Participating Member State or London, as specified by
the Facility Agent, |
and with such bank as the Facility Agent, in each case, specifies.
| 29.2 | Distributions by the Facility Agent |
Each payment received by the Facility Agent under the Finance
Documents for another Party must, except as provided in this Clause 29, be paid by the Facility Agent 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) as soon as reasonably practicable
after receipt, to such account:
| 29.2.1 | in the principal financial centre of the country of the relevant currency; or |
| 29.2.2 | in relation to a payment in euro, in the principal financial centre of such Participating Member State or London, as specified by
that Party, |
and with such bank as that Party, in each case, may notify
to the Facility Agent by not less than five Business Days' notice.
| 29.3 | Distributions to an Obligor |
The Facility Agent may (with the consent of an Obligor or
in accordance with Clause 30 (Set-off)) apply any amount received by it for that Obligor in or towards payment (promptly on receipt)
of any amount due from that Obligor under the Finance Documents. For this purpose, the Facility Agent may apply the received sum in or
towards the purchase of any amount of any currency to be paid.
| 29.4 | Clawback and pre-funding |
| 29.4.1 | Where a sum is to be paid to the Facility Agent under the Finance Documents for another Party, the Facility 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. |
| 29.4.2 | Unless Clause 29.4.3 applies, if the Facility Agent pays an amount to another Party and it proves to be the case that the Facility
Agent has not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was
paid by the Facility Agent must on demand refund that amount to the Facility Agent together with interest on that amount from the date
of payment to the date of receipt by the Facility Agent, calculated by the Facility Agent to reflect its cost of funds. |
| 29.4.3 | If the Facility Agent has notified the Lenders that it is willing to make available amounts for the account of the Company before
receiving funds from the Lenders, then if and to the extent that the Facility Agent does so but it proves to be the case that it does
not then receive funds from a Lender in respect of a sum which it paid to the Company: |
| (A) | the Facility Agent must notify the Company promptly of that Lender's identity and the Company must on demand refund it to the Facility
Agent; and |
| (B) | the Lender by whom those funds should have been made available or, if that Lender fails to do so, the Company must on demand pay to
the Facility Agent the amount (as certified by the Facility Agent) which will indemnify the Facility Agent against any funding cost incurred
by it as a result of paying out that sum before receiving those funds from that Lender. |
| 29.5.1 | If, at any time, the Facility Agent becomes an Impaired Agent, an Obligor or a Lender which is required to make a payment under the
Finance Documents to the Facility Agent may instead either: |
| (A) | pay that amount direct to the required recipient(s); or |
| (B) | if in its absolute discretion it considers that it is not reasonably practicable to pay that amount direct to the required recipient(s),
pay that amount or the relevant part of that amount to an interest-bearing account held with a bank or financial institution which has
a rating for its long-term unsecured and non-credit-enhanced debt obligations of A+ or higher by Standard & Poor's Rating Services
or Fitch Ratings Ltd or A1 or higher by Moody's Investor Services Limited or a comparable rating from an internationally recognised credit
rating agency and in relation to which no Insolvency Event has occurred and is continuing, in the name of the Obligor or the Lender making
the payment (the "Paying Party") and designated as a trust account for the benefit of the Party beneficially entitled
to that payment under the Finance Documents (the "Recipient Party"). |
In each case the payments must be made on the due date for
payment under the Finance Documents.
| 29.5.2 | All interest accrued on the amount standing to the credit of the trust account will be for the benefit of the Recipient Party or Recipient
Parties pro rata to their respective entitlements. |
| 29.5.3 | A Party which has made a payment in accordance with this Clause 29 will be discharged of the relevant payment obligation under the
Finance Documents and will not take any credit risk with respect to the amounts standing to the credit of the trust account. |
| 29.5.4 | Promptly on the appointment of a successor Facility Agent under this Agreement, each Paying Party must (other than to the extent that
the relevant Party has given an instruction under Clause 29.5.5) give all requisite instructions to the bank with whom the trust account
is held to transfer the amount (together with any accrued interest) to the successor Facility Agent for distribution to the relevant Recipient
Party or Recipient Parties in accordance with the Finance Documents. |
| 29.5.5 | A Paying Party must, promptly on request by a Recipient Party and to the extent: |
| (A) | that it has not given an instruction under Clause 29.5.4; and |
| (B) | that it has been provided with the necessary information by that Recipient Party, |
give instructions to the bank with which the trust account
is held to transfer the relevant amount (together with any accrued interest) to that Recipient Party.
| 29.6.1 | If the Facility Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under
the Finance Documents, the Facility Agent must apply that payment towards the obligations of that Obligor under the Finance Documents
in the following order: |
| (A) | first, in or towards payment pro rata of any unpaid amount owing to the Administrative Parties under the Finance Documents; |
| (B) | secondly, in or towards payment pro rata of any accrued interest, fees or commission due but unpaid under this Agreement; |
| (C) | thirdly, in or towards payment pro rata of any principal sum due but unpaid under this Agreement; and |
| (D) | fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents. |
| 29.6.2 | The Facility Agent must, if so directed by the Majority Lenders, vary the order set out in Clauses 29.6.1(B) to 29.6.1(D) above. |
| 29.6.3 | Clauses 29.6.1 and 29.6.2 above will override any appropriation made by an Obligor. |
| 29.7 | No set-off by Obligors |
All payments to be made by an Obligor under the Finance Documents
will be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.
| 29.8.1 | Any payment under the Finance Documents which is due to be made on a day that is not a Business Day will 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). |
| 29.8.2 | During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement, interest is payable on the principal
or Unpaid Sum at the rate payable on the original due date. |
| 29.9.1 | Unless a Finance Document specifies otherwise, the Base Currency is the currency of account and payment for any sum due from an Obligor
under any Finance Document. |
| 29.9.2 | A repayment of a Loan or Unpaid Sum or part of a Loan or Unpaid Sum will be made in the currency in which that Loan or Unpaid Sum
is denominated under this Agreement on its due date. |
| 29.9.3 | Each payment of interest must be made in the currency in which the sum in respect of which the interest is payable was denominated
under this Agreement when that interest accrued. |
| 29.9.4 | Each payment in respect of costs, expenses or Taxes must be made in the currency in which the costs, expenses or Taxes are incurred. |
| 29.9.5 | Any amount expressed to be payable in a currency other than the Base Currency will be paid in that other currency. |
| 29.10.1 | 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: |
| (A) | any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country
will be translated into, or paid in, the currency or currency unit of that country designated by the Facility Agent (after consultation
with the Company); and |
| (B) | any translation from one currency or currency unit to another will be at the official rate of exchange recognised by the central bank
for the conversion of that currency or currency unit into the other, rounded up or down by the Facility Agent (acting reasonably). |
| 29.10.2 | If a change in any currency of a country occurs (including where there is more than one currency or currency unit recognised at the
same time as the lawful currency of a country), the Finance Documents will, to the extent the Facility Agent (acting reasonably and after
consultation with the Company) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice
in the Relevant Market and otherwise reflect the change in currency. |
| 29.11 | Disruption to payment systems |
| 29.11.1 | If the Facility Agent determines (in its discretion) that a Disruption Event has occurred or the Facility Agent is notified by the
Company that a Disruption Event has occurred: |
| (A) | the Facility Agent may, and must if requested to do so by the Company, consult with the Company with a view to agreeing with the Company
such changes to the operation or administration of the Facility as the Facility Agent may decide are necessary in the circumstances; |
| (B) | the Facility Agent is not obliged to consult with the Company in relation to any changes if, in its opinion, it is not practicable
to do so in the circumstances and, in any event, is not obliged to agree to any changes; and |
| (C) | the Facility Agent may consult with the Finance Parties in relation to any changes but is not obliged to do so if, in its opinion,
it is not practicable to do so in the circumstances. |
| 29.11.2 | Any agreement between the Facility Agent and the Company will (whether or not it is finally determined that a Disruption Event has
occurred) be binding on the Parties as an amendment to (or, as the case may be, a waiver of) the terms of the Finance Documents notwithstanding
the provisions of Clause 35 (Amendments and waivers). |
| 29.11.3 | Notwithstanding any other provision of this Agreement, the Facility Agent will not be liable (whether in contract, tort or otherwise
and whether caused by the Facility Agent's negligence, gross negligence or any other category of liability whatsoever, but not including
any claim based on the fraud of the Facility Agent) for any cost, loss or liability whatsoever any person incurs or any diminution in
value arising as a result of the Facility Agent taking or not taking any action under or in connection with this Clause 29.11. |
| 29.11.4 | The Facility Agent must notify the Finance Parties promptly of all changes agreed pursuant to Clause 29.11.2. |
If a Finance Document does not provide for when a particular
payment is due, that payment will be due within three Business Days of demand by the person to whom the payment is to be made (or, if
that person is a Finance Party, the Facility Agent).
While an Event of Default is continuing, a Finance Party
may set off any matured obligation due from an Obligor under the Finance Documents (to the extent beneficially owned by that Finance Party)
against any matured obligation owed by that Finance Party to that Obligor, 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. That Finance Party will promptly notify that Obligor of any
such set-off or conversion.
| 31.1 | Communications in writing |
Any communication to be made under or in connection with
the Finance Documents must be made in writing and, unless otherwise stated, may be made by email or letter.
| 31.2.1 | Except as provided below, the contact details of each Party for any communication to be made or delivered under or in connection with
the Finance Documents are those notified by that Party for this purpose to the Facility Agent on or before the date it becomes a Party. |
| 31.2.2 | The contact details of the Company for this purpose are: |
| Address: | 201 Bishopsgate, London, EC2M 3AE, United Kingdom |
| Email: | roger.thompson@janushenderson.com |
| | michelle.rosenberg@janushenderson.com |
| Attention: | Roger Thompson (CFO) and Michelle Rosenberg (General Counsel and Company Secretary) |
| 31.2.3 | The contact details of the Original Guarantor for this purpose are: |
| Address: | 151 Detroit Street, Denver, Colorado 80206 USA |
| Email: | Brennan.hughes@janushenderson.com |
| Michelle.rosenberg@janushenderson.com | |
| Attention: | Brennan Hughes (Treasurer) and Michelle Rosenberg (General Counsel) |
| 31.2.4 | The contact details of the Facility Agent for this purpose are: |
| Address: | Two Park Place, Hatch Street, Dublin 2, Ireland |
| Email: | Emealendingopsagencybilat@bofa.com |
| 31.2.5 | Any Party may change its contact details by giving five Business Days' notice to the Facility Agent or (in the case of the Facility
Agent) to the other Parties. |
| 31.3.1 | Except as provided below, any communication made or delivered by one Party to another under or in connection with the Finance Documents
will only be effective: |
| (A) | if by way of email, when received in legible form; or |
| (B) | if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage
prepaid in an envelope addressed to it at that address, |
and, if a particular department or officer is specified as
part of its address details provided under Clause 31.2 (Addresses), if addressed to that department or officer.
| 31.3.2 | Any communication to be made or delivered to the Facility Agent will be effective only when actually received by the Facility Agent. |
| 31.3.3 | All communications from or to an Obligor must be sent through the Facility Agent. |
| 31.3.4 | All communications from or to an Obligor (other than the Company) must be sent through the Company. |
| 31.3.5 | Each Obligor (other than the Company) irrevocably appoints the Company to act as its agent: |
| (A) | to give and receive all communications under or in connection with the Finance Documents; |
| (B) | to exercise any rights or discretions on its behalf under the Finance Documents; |
| (C) | to supply all information concerning itself to any Finance Party; and |
| (D) | to sign all documents on its behalf under or in connection with the Finance Documents. |
| 31.3.6 | Any communication made or delivered to the Company in accordance with this Clause 31 will be deemed to have been made or delivered
to each of the Obligors. |
| 31.3.7 | Each Finance Party may assume that any communication made by the Company (or by the Company on behalf of an Obligor) is made with
the consent of each other Obligor. |
| 31.3.8 | Any communication which would otherwise become effective on a non-working day or after business hours in the place of receipt will
be deemed only to become effective on the next working day in that place. |
| 31.4 | Notification of address and email address |
Promptly on receipt of notification of a Party's contact
details or a change of a Party's contact details, the Facility Agent must notify the other Parties.
| 31.5 | Electronic communication |
| 31.5.1 | Any communication or document to be made or delivered by one Party to another under or in connection with the Finance Documents may
be made or delivered by electronic mail or other electronic means (including, without limitation, by way of posting to a secure website),
if those two Parties: |
| (A) | notify each other in writing of their electronic mail address and/or any other information required to enable the transmission of
information by that means; and |
| (B) | notify each other of any change to their electronic mail address or any other such information supplied by them by not less than five
Business Days' notice. |
| 31.5.2 | Any electronic communication or delivery as specified in Clause 31.6.1 above to be made between an Obligor and a Finance Party may
only be made in that way to the extent that those two Parties agree that, unless and until notified to the contrary, this is an accepted
form of communication or delivery. |
| 31.5.3 | For the purposes of the Finance Documents, an electronic communication or delivery will be treated as being in writing. |
| 31.5.4 | Any electronic communication or document as specified in Clause 31.6.1 above made or delivered by one Party to another will be effective
only when actually received (or made available) in readable form and in the case of any electronic communication or document made or delivered
by a Party to the Facility Agent only if it is addressed in such a manner as the Facility Agent may specify for this purpose. |
| 31.5.5 | Any electronic communication which would otherwise become effective, in accordance with Clause 31.6.4 above, after 5:00 p.m. in
the place in which the Party to whom the relevant communication or document is sent (or made available) has its address for the purposes
of this Agreement will be deemed only to become effective on the next working day in that place. |
| 31.5.6 | Any reference in a Finance Document to a communication being sent or received or a document being delivered will be construed to include
that communication or document being made available in accordance with this Clause 31.6. |
| 31.6 | Communication when Facility Agent is Impaired Agent |
If the Facility Agent is an Impaired Agent, the Parties may,
instead of communicating with each other through the Facility Agent, communicate with each other directly and (while the Facility Agent
is an Impaired Agent) all the provisions of the Finance Document which require communications to be made or notices to be given to or
by the Facility Agent will be varied so that communications may be made and notices given to or by the relevant Parties directly. This
provision will not operate after a replacement Facility Agent has been appointed.
| 31.7.1 | Any communication made under or in connection with any Finance Document must be in English. |
| 31.7.2 | All other documents provided under or in connection with any Finance Document must be: |
| (B) | if not in English, and if so required by the Facility Agent, accompanied by a certified English translation and, in this case, the
English translation will prevail unless the document is a constitutional, statutory or other official document. |
| 32. | Calculations and certificates |
In any litigation or arbitration proceedings arising out
of or in connection with a Finance Document, the entries made in the accounts maintained by a Finance Party are prima facie evidence of
the matters to which they relate.
| 32.2 | Certificates and determinations |
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.
| 32.3 | Day count conventions and interest calculation |
| 32.3.1 | Any interest, commission or fee accruing under a Finance Document will accrue from day to day and the amount of any such interest,
commission or fee is calculated: |
| (A) | 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 Market
differs, in accordance with that market practice); and |
| (B) | subject to Clause 32.3.2 below, without rounding. |
| 32.3.2 | The aggregate amount of any accrued interest, commission or fee which is, or becomes, payable by an Obligor under a Finance Document
shall be rounded to two decimal places. |
If, at any time, any term of a Finance Document is or becomes
illegal, invalid or unenforceable in any respect under any law of any jurisdiction, that will not affect:
| 33.1.1 | the legality, validity or enforceability in that jurisdiction of any other term of any Finance Document; or |
| 33.1.2 | the legality, validity or enforceability in other jurisdictions of that or any other term of any Finance Document. |
No failure to exercise, nor any delay in exercising, on the
part of any Finance Party, any right or remedy under a Finance Document will operate as a waiver, nor will 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 each Finance Document are cumulative and not exclusive of any rights or remedies provided by law and may be waived only in writing
and specifically.
| 35. | Amendments and waivers |
| 35.1.1 | Except as provided in this Clause 35, any term of or any right or remedy under a Finance Document may be amended or waived only with
the consent of the Company and the Majority Lenders and any such amendment or waiver will be binding on all the Parties. |
| 35.1.2 | The Facility Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 35. The Facility Agent
must notify the other Parties promptly of any amendment or waiver effected by it under this Clause 35.1.2. |
| 35.1.3 | Each Guarantor agrees to any amendment or waiver permitted by this Clause 35 which is agreed to by the Company. |
Subject to Clause 35.4 (Changes to reference rates),
an amendment or waiver of any term of or any right or remedy under a Finance Document that has the effect of changing or which relates
to:
| 35.2.1 | the definition of "Majority Lenders", "Sanctioned Person", "Sanctions" or "Sanctions
Event" in Clause 1.1 (Definitions); |
| 35.2.2 | other than pursuant to Clause 2.5 (Extension), an extension of the date of payment of any amount to or for the account of a
Lender under the Finance Documents; |
| 35.2.3 | a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fee or other amount payable to or for
the account of a Lender under the Finance Documents; |
| 35.2.4 | other than pursuant to Clause 2.3 (Increase) or Clause 2.4 (Accordion Increase in Commitments), an increase in any Commitment
or the Total Commitments or an extension of the Availability Period or any requirement that a cancellation of Commitments reduces the
Commitments of the Lenders rateably under the Facility; |
| 35.2.5 | a release of an Obligor other than in accordance with the terms of this Agreement; |
| 35.2.6 | any provision of a Finance Document which expressly requires the consent of all the Lenders; |
| 35.2.7 | Clause 2.2 (Finance Parties' rights and obligations), Clause 8.2 (Change of control), Clause 8.3 (Sanctions Event),
Clause 8.11 (Application of prepayments), Clause 19.15 (Anti-Corruption law, Anti-Money Laundering laws, sanctions and Patriot
Act), Clause 22.11 (Anti-Corruption law, Anti-Money Laundering laws and Sanctions), Clause 24 (Changes to the Lenders), Clause
28 (Sharing among the Finance Parties), Clause 39 (Contractual Recognition of Bail-In), Clause 42.1 (Jurisdiction)
or this Clause 35; or |
| 35.2.8 | the nature or scope of the guarantee and indemnity granted under Clause 18 (Guarantee and indemnity), |
may only be made with the prior consent of all the Lenders.
| 35.3.1 | An amendment or waiver which relates to the rights or obligations of an Administrative Party may only be made with the consent of
that Administrative Party, as the case may be. |
| 35.3.2 | Notwithstanding Clause 35.2 (All Lender matters), a Fee Letter may be amended or waived with the agreement of each Administrative
Party that is a party to that Fee Letter and the Company. |
| 35.4 | Changes to reference rates |
| 35.4.1 | Subject to Clause 35.3.1 (Other exceptions), if a Published Rate Replacement Event has occurred in relation to any Published
Rate for a currency which can be selected for a Loan, any amendment or waiver which relates to: |
| (A) | providing for the use of a Replacement Reference Rate in relation to that currency in place of that Published Rate; and |
| (1) | aligning any provision of any Finance Document to the use of that Replacement Reference Rate; |
| (2) | enabling that Replacement Reference Rate to be used for the calculation of interest under this Agreement (including, without limitation,
any consequential changes required to enable that Replacement Reference Rate to be used for the purposes of this Agreement); |
| (3) | implementing market conventions applicable to that Replacement Reference Rate; |
| (4) | providing for appropriate fallback (and market disruption) provisions for that Replacement Reference Rate; or |
| (5) | adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one Party
to another as a result of the application of that Replacement Reference Rate (and if any adjustment or method for calculating any adjustment
has been formally designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall be determined on the basis
of that designation, nomination or recommendation), |
may be made with the consent of the Facility Agent (acting
on the instructions of the Majority Lenders) and the Company.
| 35.4.2 | An amendment or waiver that relates to, or has the effect of, aligning the means of calculation of interest on a Compounded Rate Loan
in any currency under this Agreement to any recommendation of a Relevant Nominating Body which: |
| (A) | relates to the use of a risk-free reference rate on a compounded basis in the international or any relevant domestic syndicated loan
markets; and |
| (B) | is issued on or after the Signing Date, |
may be made with the consent of the Facility Agent (acting
on the instructions of the Majority Lenders) and the Company.
| 35.4.3 | If any Lender fails to respond to a request for an amendment or waiver described in Clause 35.4.1 or Clause 35.4.2 within ten Business
Days (or any longer period the Company and the Facility Agent agree in relation to any request) of that request being made: |
| (A) | its Commitment(s) will not be included for the purpose of calculating the Total Commitments under the Facility when ascertaining
whether any relevant percentage of Total Commitments has been obtained to approve that request; and |
| (B) | its status as a Lender will be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders
has been obtained to approve that request. |
| 35.4.4 | In this Clause 35.4: |
"Published Rate"
means:
| (a) | the Alternative Term Rate for any Quoted Tenor; |
| (b) | the Primary Term Rate for any Quoted Tenor; or |
"Published Rate Replacement
Event" means, in relation to a Published Rate:
| (a) | the methodology, formula or other means of determining that Published Rate has, in the opinion of the Majority Lenders and the Company,
materially changed; |
| (b) |
(i) | (A) |
the administrator of that Published Rate or its supervisor publicly announces that such administrator is insolvent; or |
| (B) | information is published in any order, decree, notice, petition or filing, however described, of or filed with a court, tribunal,
exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably confirms that the administrator
of that Published Rate is insolvent, |
provided that,
in each case, at that time, there is no successor administrator to continue to provide that Published Rate;
| (ii) | the administrator of that Published Rate publicly announces that it has ceased or will cease to provide that Published Rate permanently
or indefinitely and, at that time, there is no successor administrator to continue to provide that Published Rate; |
| (iii) | the supervisor of the administrator of that Published Rate publicly announces that such Published Rate has been or will be permanently
or indefinitely discontinued; or |
| (iv) | the administrator of that Published Rate or its supervisor announces that that Published Rate may no longer be used; or |
| (v) | the supervisor of the administrator of that Primary Term Rate makes a public announcement or publishes information stating that that
Primary Term Rate for that Quoted Tenor is no longer, or as of a specified future date will no longer be, representative of the underlying
market or economic reality that it is intended to measure and that representativeness will not be restored (as determined by such supervisor);
or |
| (c) | the administrator of that Published Rate (or the administrator of an interest rate which is a constituent element of that Published
Rate) determines that that Published Rate should be calculated in accordance with its reduced submissions or other contingency or fallback
policies or arrangements and either: |
| (i) | the circumstance(s) or event(s) leading to such determination are not (in the opinion of the Majority Lenders and the Company)
temporary; |
| (ii) | that Published Rate is calculated in accordance with any such policy or arrangement for a period no less than the period specified
as the "Published Rate Contingency Period" in the Reference Rate Terms relating to that Published Rate; or |
| (d) | in the opinion of the Majority Lenders and the Obligors, Term SOFR has become generally accepted in the international or any relevant
domestic syndicated loan markets, is available for each Interest Period and is appropriate for the purposes of calculating interest under
this Agreement; or |
| (e) | in the opinion of the Majority Lenders and the Company, that Published Rate is otherwise no longer appropriate for the purposes of
calculating interest under this Agreement. |
"Relevant Nominating
Body" means any applicable central bank, regulator or other supervisory authority or a group of them, or any working group
or committee sponsored or chaired by, or constituted at the request of, any of them or the Financial Stability Board.
"Replacement Reference
Rate" means a reference rate which is:
| (a) | formally designated, nominated or recommended as the replacement for a Published Rate by: |
| (i) | the administrator of that Published Rate (provided that the market or economic reality that such reference rate measures is the same
as that measured by that Published Rate); or |
| (ii) | any Relevant Nominating Body, |
and if replacements have, at the relevant time, been formally
designated, nominated or recommended under both paragraphs, the "Replacement Reference Rate" will be the replacement under paragraph (ii);
| (b) | in the opinion of the Majority Lenders and the Company, generally accepted in the international or any relevant domestic syndicated
loan markets as the appropriate successor to a Published Rate; or |
| (c) | in the opinion of the Majority Lenders and the Company, an appropriate successor to a Published Rate. |
"Term SOFR"
means, with respect to any Loan for any Interest Period, the forward-looking term rate for a period comparable to such Interest Period
based on SOFR that is published by an information service that publishes such rate from time to time as selected by the Facility Agent
in its reasonable discretion at approximately a time and as of a date prior to the commencement of such Interest Period determined by
the Facility Agent in its reasonable discretion in a manner substantially consistent with market practice.
| 35.5 | Replacement of a Defaulting Lender |
| 35.5.1 | The Company may, at any time a Lender has become and continues to be a Defaulting Lender, by giving 15 Business Days' notice to the
Facility Agent and that Lender: |
| (A) | replace that Lender by requiring that Lender to (and that Lender must) transfer in accordance with this Agreement all (and not part
only) of its rights and obligations under this Agreement; |
| (B) | require that Lender to (and that Lender must) transfer in accordance with this Agreement all (and not part only) of the undrawn Commitment
of that Lender; or |
| (C) | require that Lender to (and that Lender must) transfer in accordance with this Agreement all (and not part only) of its rights and
obligations in respect of the Facility, |
to a Lender or other bank or financial institution (a Replacement
Lender) selected by the Company, and which confirms its willingness to assume and does assume all the obligations or all the relevant
obligations of the transferring Lender in accordance with Clause 24 (Changes to the Lenders) for a purchase price in cash payable
at the time of transfer which is either:
| (1) | in an amount equal to the outstanding principal amount of that Lender's participation in the outstanding Loans and all accrued interest
(to the extent that the Facility Agent has not given a notification under Clause 24.9 (Pro rata interest settlement)), Break Costs
and other amounts payable in relation to that Commitment under the Finance Documents; or |
| (2) | in an amount agreed between that Defaulting Lender, the Replacement Lender and the Company and which does not exceed the amount described
in paragraph (1). |
| 35.5.2 | Any transfer of rights and obligations of a Defaulting Lender under this Clause 35.5 is subject to the following conditions: |
| (A) | the Company has no right to replace the Facility Agent; |
| (B) | neither the Facility Agent nor the Defaulting Lender will have any obligation to the Company to find a Replacement Lender; |
| (C) | the transfer must take place no later than 15 days after the notice referred to in Clause 35.5.1; |
| (D) | in no event will the Defaulting Lender be required to pay or surrender to the Replacement Lender any of the fees received by the Defaulting
Lender under the Finance Documents; and |
| (E) | the Defaulting Lender will only be obliged to transfer its rights and obligations under Clause 35.5.1 once it is satisfied that it
has complied with all necessary "know your customer" checks or other similar checks required under any applicable law or regulation
in relation to that transfer to the Replacement Lender. |
| 35.5.3 | The Defaulting Lender must perform the checks described in Clause 35.5.2(E) as soon as reasonably practicable following delivery
of a notice referred to in Clause 35.5.1 and must notify the Facility Agent and the Company when it is satisfied that it has complied
with those checks. |
| 35.6 | Disenfranchisement of Defaulting Lenders |
| 35.6.1 | For so long as a Defaulting Lender has any Available Commitment, in ascertaining: |
| (A) | the Majority Lenders; or |
| (1) | any given percentage (including, for unanimity) of the Total Commitments; or |
| (2) | the agreement of any specified group of Lenders, |
has been obtained to approve any request for a consent, waiver,
amendment or other vote under the Finance Documents,
that Defaulting Lender's Commitment under the relevant Facility
will be reduced by the amount of its Available Commitments under the relevant Facility and, to the extent that the reduction results in
that Defaulting Lender's Total Commitments being zero, that Defaulting Lender will be deemed not to be a Lender for the purposes of paragraphs
(A) and (B).
| 35.6.2 | For the purposes of this Clause 35.6, the Facility Agent may assume that the following Lenders are Defaulting Lenders: |
| (A) | any Lender which has notified the Facility Agent that it has become a Defaulting Lender; and |
| (B) | any Lender in relation to which it is aware that any of the events or circumstances referred to in paragraphs (a) or (b) of
the definition of Defaulting Lender has occurred, |
unless it has received notice to the contrary from the Lender
concerned (together with any supporting evidence reasonably requested by the Facility Agent) or the Facility Agent is otherwise aware
that the Lender has ceased to be a Defaulting Lender.
| 36. | Confidential Information |
| 36.1.1 | Each Finance Party must keep all Confidential Information confidential and not disclose it to any person, save to the extent permitted
by Clause 36.2 (Disclosure of Confidential Information) and Clause 36.3 (Disclosure to numbering service providers). |
| 36.1.2 | Each Finance Party must ensure that all Confidential Information is protected with security measures and a degree of care that would
apply to its own confidential information. |
| 36.2 | Disclosure of Confidential Information |
Any Finance Party may disclose:
| 36.2.1 | to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, auditors,
partners, service providers and Representatives such Confidential Information as that Finance Party considers appropriate if any person
to whom the Confidential Information is to be given pursuant to this Clause 36.2.1 is informed in writing of its confidential nature and
that some or all of such Confidential Information may be price-sensitive information except that there is no such requirement to so inform
if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements
of confidentiality in relation to the Confidential Information; |
| (A) | to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under
one or more Finance Documents or which succeeds (or which may potentially succeed) it as an Administrative Party and, in each case, to
any of that person's Affiliates, Related Funds, Representatives and professional advisers; |
| (B) | with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation
to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or
one or more Obligors and to any of that person's Affiliates, Related Funds, Representatives and professional advisers; |
| (C) | appointed by any Finance Party or by a person to whom Clause 36.2.2(A) or 36.2.2(B) above applies to receive communications,
notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person
appointed under Clause 26.15.3 (Relationship with the Lenders)); |
| (D) | who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction
referred to in Clause 36.2.2(A) or 36.2.2(B) above; |
| (E) | to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking,
taxation or other regulatory authority or similar body, the rules of any relevant stock exchange, listing authority or similar body,
or pursuant to any applicable law or regulation; |
| (F) | to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative
or other investigations, proceedings or disputes; |
| (G) | to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security Interests (or may do so) pursuant to
Clause 24.8 (Security over Lenders' rights); |
| (H) | who is a Party or a member of the Group; or |
| (I) | with the consent of the Company, |
in each case, such Confidential Information as that Finance
Party considers appropriate if:
| (1) | in relation to Clauses 36.2.2(A), 36.2.2(B) and 36.2.2(C) above, the person to whom the Confidential Information is to be
given has entered into a Confidentiality Undertaking except that there is no requirement for a Confidentiality Undertaking if the recipient
is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information; |
| (2) | in relation to Clause 36.2.2(D) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality
Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed
that some or all of such Confidential Information may be price-sensitive information; |
| (3) | in relation to Clauses 36.2.2(E), 36.2.2(F) and 36.2.2(G) above, the person to whom the Confidential Information is to be
given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information
except that there is no requirement to inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances; |
| 36.2.3 | to any person appointed by that Finance Party or by a person to whom Clause 36.2.2(A) or 36.2.2(B) above applies to provide
administration or settlement services in respect of one or more of the Finance Documents including, without limitation, in relation to
the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to
enable such service provider to provide any of the services referred to in this Clause 36.2.3 if the service provider to whom the Confidential
Information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking
for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Company
and the relevant Finance Party; and |
| 36.2.4 | to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable
such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors. |
| 36.3 | Disclosure to numbering service providers |
| 36.3.1 | Any Finance Party may disclose to any national or international numbering service provider appointed by that Finance Party to provide
identification numbering services in respect of this Agreement, the Facility and/or one or more Obligors the following information: |
| (A) | the names of the Obligors; |
| (B) | the country of domicile of the Obligors; |
| (C) | the place of incorporation of the Obligors; |
| (E) | the governing law of this Agreement; |
| (F) | the names of the Facility Agent and the Arrangers; |
| (G) | the date of each amendment and restatement of this Agreement; |
| (H) | the amount and name of the Facility (and any tranches); |
| (I) | the amount of the Total Commitments; |
| (J) | the currencies of the Facility; |
| (K) | the type of the Facility; |
| (L) | the ranking of the Facility; |
| (M) | the Termination Date for the Facility; |
| (N) | changes to any of the information previously supplied pursuant to paragraphs (A) to (M) above; and |
| (O) | such other information agreed between such Finance Party and the Company, |
to enable such numbering service provider to provide its usual
syndicated loan numbering identification services.
| 36.3.2 | The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facility and/or one or more Obligors
by a numbering service provider and the information associated with each such number may be disclosed to users of its services in accordance
with the standard terms and conditions of that numbering service provider. |
This Clause 36:
| 36.4.1 | constitutes the entire agreement between the Parties in relation to the obligations of the Finance Parties under the Finance Documents
regarding Confidential Information; and |
| 36.4.2 | supersedes any previous agreement, whether express or implied, regarding Confidential Information. |
Each Finance Party acknowledges that some or all of the Confidential
Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable
legislation including securities law relating to insider dealing and market abuse, and each of the Finance Parties undertakes not to use
any Confidential Information for any unlawful purpose.
| 36.6 | Notification of disclosure |
Each Finance Party agrees (to the extent permitted by law
and regulation) to inform the Company:
| 36.6.1 | of the circumstances of any disclosure of Confidential Information made pursuant to Clause 36.2.2(E) (Disclosure of Confidential
Information) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of
its supervisory or regulatory function; and |
| 36.6.2 | on becoming aware that Confidential Information has been disclosed in breach of this Clause 36. |
| 36.7 | Continuing obligations |
The obligations in this Clause 36 are continuing and, in
particular, will survive and remain binding on each Finance Party for a period of 12 months from the earlier of:
| 36.7.1 | the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments
have been cancelled or otherwise cease to be available; and |
| 36.7.2 | the date on which such Finance Party otherwise ceases to be a Finance Party. |
| 37. | Confidentiality of Funding Rates |
| 37.1 | Confidentiality and disclosure |
| 37.1.1 | The Facility Agent and each Obligor agree to keep each Funding Rate confidential and not to disclose it to any person, save to the
extent permitted by Clauses 37.1.2 and 37.1.3. |
| 37.1.2 | The Facility Agent may disclose: |
| (A) | any Funding Rate to the Company pursuant to Clause 9.6 (Notifications); and |
| (B) | any Funding Rate to any person appointed by it to provide administration services in respect of one or more of the Finance Documents
to the extent necessary to enable such service provider to provide those services if the service provider to whom that information is
to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use
With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Facility Agent and
the relevant Lender. |
| 37.1.3 | The Facility Agent may disclose any Funding Rate, and each Obligor may disclose any Funding Rate, to: |
| (A) | any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditor, partners and Representatives
if any person to whom that Funding Rate is to be given pursuant to this paragraph (A) is informed in writing of its confidential
nature and that it may be price-sensitive information except that there is no requirement to so inform the recipient if the recipient
is subject to professional obligations to maintain the confidentiality of that Funding Rate or is otherwise bound by requirements of confidentiality
in relation to it; |
| (B) | any person to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental,
banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable
law or regulation if the person to whom that Funding Rate is to be given is informed in writing of its confidential nature and that it
may be price-sensitive information except that there is no requirement to so inform the recipient if, in the opinion of the Facility Agent
or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances; |
| (C) | any person to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration,
administrative or other investigations, proceedings or disputes if the person to whom that Funding Rate is to be given is informed in
writing of its confidential nature and that it may be price-sensitive information except that there is no requirement to so inform the
recipient if, in the opinion of the Facility Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the
circumstances; and |
| (D) | any person with the consent of the relevant Lender, as the case may be. |
| 37.2.1 | The Facility Agent and each Obligor acknowledge that each Funding Rate is or may be price-sensitive information and that its use may
be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse, and the Facility
Agent and each Obligor undertake not to use any Funding Rate for any unlawful purpose. |
| 37.2.2 | The Facility Agent and each Obligor agree (to the extent permitted by law and regulation) to inform the relevant Lender: |
| (A) | of the circumstances of any disclosure made pursuant to Clause 37.1.3(B) (Confidentiality and disclosure) except where
such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory
function; and |
| (B) | on becoming aware that any information has been disclosed in breach of this Clause 37. |
No Event of Default will occur under Clause 23.4 (Other
obligations) by reason only of an Obligor's failure to comply with this Clause 37.
Each Finance Document may be executed in any number of counterparts.
This has the same effect as if the signatures on the counterparts were on a single copy of the Finance Document.
| 39. | Contractual Recognition of Bail-In |
| 39.1 | Notwithstanding any other term of any Finance Document or any other agreement, arrangement or understanding between the Parties, each
Party acknowledges and accepts that any liability of any Party to any other Party under or in connection with the Finance Documents may
be subject to Bail-In Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the effect of: |
| 39.1.1 | any Bail-In Action in relation to any such liability, including (without limitation): |
| (A) | a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in
respect of any such liability; |
| (B) | a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred
on, it; and |
| (C) | a cancellation of any such liability; and |
| 39.1.2 | a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such
liability. |
"Article 55 BRRD
"means Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions
and investment firms.
"Bail-In Action"
means the exercise of any Write-down and Conversion Powers.
"Bail-In Legislation"
means:
| (a) | in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 BRRD, the relevant implementing
law or regulation as described in the EU Bail-In Legislation Schedule from time to time; |
| (b) | in relation to the United Kingdom, the UK Bail-In Legislation; and |
| (c) | in relation to any state other than such an EEA Member Country and the United Kingdom, any analogous law or regulation from time to
time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation. |
"EEA Member Country"
means any member state of the European Union, Iceland, Liechtenstein and Norway.
"EU Bail-In Legislation
Schedule" means the document described as such and published by the Loan Market Association (or any successor person)
from time to time.
"Resolution Authority"
means any body which has authority to exercise any Write-down and Conversion Powers.
"UK Bail-In Legislation"
means Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to
the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through
liquidation, administration or other insolvency proceedings).
"Write-down and Conversion
Powers" means:
| (a) | in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as
such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; |
| (b) | in relation to the UK Bail-In Legislation, any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued
by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial
institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that
liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person,
to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation
in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of those powers;
and |
| (c) | in relation to any other applicable Bail-In Legislation: |
| (i) | any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm
or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change
the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that
liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is
to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers
under that Bail-In Legislation that are related to or ancillary to any of those powers; and |
| (ii) | any similar or analogous powers under that Bail-In Legislation. |
This Agreement and any non-contractual obligations arising
out of or in connection with it are governed by English law.
| 41. | Waiver of trial by jury |
Each party waives any right it may have to a jury trial of
any claim or cause of action in connection with any Finance Document or any transaction contemplated by any Finance Document. This Agreement
may be filed as a written consent to trial by court.
| 42.1.1 | Unless specifically provided in another Finance Document in relation to that Finance Document, the English courts have exclusive jurisdiction
to settle any dispute arising out of or in connection with any Finance Document (including a dispute relating to the existence, validity
or termination of any Finance Document or any non-contractual obligation arising out of or in connection with any Finance Document) (a
"Dispute"). |
| 42.1.2 | The Parties agree that the English courts are the most appropriate and convenient courts to settle Disputes and accordingly no Party
will argue to the contrary. |
| 42.1.3 | This Clause 42.1 is for the benefit of the Finance Parties only. As a result, to the extent permitted by law: |
| (A) | no Finance Party will be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction; and |
| (B) | the Finance Parties may take concurrent proceedings in any number of jurisdictions. |
| 42.2.1 | Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in
England and Wales): |
| (A) | irrevocably appoints Janus Henderson Administration UK Limited as its agent under the Finance Documents for service of process in
relation to any proceedings before the English courts in connection with any Finance Document; and |
| (B) | agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned. |
| 42.2.2 | If any person appointed as process agent under this Clause 42.2 is unable for any reason so to act, the Company (on behalf of all
the Obligors) must immediately (and in any event within ten days of the event taking place) appoint another agent on terms acceptable
to the Facility Agent. Failing this, the Facility Agent may appoint another process agent for this purpose. |
| 43. | USA Patriot Act & BENEFICIAL OWNERSHIP REGULATION |
Each Finance Party that is subject to the requirements of
the USA Patriot Act and/or the Beneficial Ownership Regulation, as applicable, hereby notifies each Obligor that pursuant to the requirements
of the USA Patriot Act and/or the Beneficial Ownership Regulation, as applicable, it is required to obtain, verify and record information
that identifies the Obligors, which information includes the name and address of the Obligors and other information that will allow such
Finance Party to identify the Obligors in accordance with the USA Patriot Act and/or the Beneficial Ownership Regulation, as appliable.
Each Obligor agrees that it will provide each Finance Party with such information as it may request in order for such Finance Party to
satisfy the requirements of the USA Patriot Act and/or the Beneficial Ownership Regulation, as applicable.
THIS AGREEMENT has been
entered into on the date stated at the beginning of this Agreement.
Schedule 1
Original
Parties
Original Lender | |
Commitment
(USD) | | |
Treaty passport scheme reference number and jurisdiction of tax residence (if applicable) |
Bank of America Europe Designated Activity Company | |
| 43,000,000 | | |
N/A |
Citibank, N.A. | |
| 43,000,000 | | |
13/C/62301/DTTP USA |
BNP Paribas, London Branch | |
| 28,500,000 | | |
N/A |
NatWest Markets Plc | |
| 28,500,000 | | |
N/A |
State Street Bank and Trust Company | |
| 28,500,000 | | |
13/S/201919/DTTP USA |
Wells Fargo Bank, National Association | |
| 28,500,000 | | |
13/W/61173/DTTP USA |
| |
| 200,000,000.00 | | |
|
Schedule 2
Conditions
precedent
Part A
Conditions
Precedent to initial utilisation
| 1. | Corporate documentation |
| 1.1.1 | A copy of the constitutional documents of each Original Obligor, including: |
| (A) | in respect of the Company, the consent issued to the Company under the Control of Borrowing (Jersey) Order 1958; and |
| (B) | in respect of the Original Guarantor, copies of (i) its bylaws or similar governing document, (ii) its charter or certificate
or articles of incorporation or similar formation document, certified on a recent date by the Secretary of State or other relevant office
of the Original Guarantor's jurisdiction of incorporation, which certificate lists (if such type of list is generally available in the
applicable jurisdiction) the charter documents on file in the office of such Secretary of State (or such other relevant office) and (iii) a
good standing certificate or similar document (including verification of tax status, if generally available in the applicable jurisdiction)
with respect to the Original Guarantor, issued as of a recent date prior to the date of this Agreement by the Secretary of State or other
appropriate official of the Original Guarantor's jurisdiction of organisation. |
| 1.1.2 | A copy of a resolution of the board of directors of each Original Obligor: |
| (A) | approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute
the Finance Documents to which it is a party; |
| (B) | authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and |
| (C) | authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant,
any Utilisation Request) to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party. |
| 1.1.3 | A specimen of the signature of each person authorised by the resolutions referred to in paragraph 1.1.2. |
| 1.1.4 | A certificate of an authorised signatory of each Original Obligor: |
| (A) | confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar
limit binding on that Original Obligor to be breached; and |
| (B) | certifying that each copy document specified in this Part A of Schedule 2 relating to it is correct, complete and in full
force and effect as at a date no earlier than the Signing Date. |
The following legal opinions:
| 2.1.1 | a legal opinion of Herbert Smith Freehills LLP, legal advisers to the Arrangers and the Facility Agent in England; |
| 2.1.2 | a legal opinion of Walkers Global, legal advisers to the Arrangers and the Facility Agent in Jersey; |
| 2.1.3 | a legal opinion of Herbert Smith Freehills LLP, legal advisers to the Arrangers, in relation to the Original Guarantor; and |
| 2.1.4 | a legal opinion of Potter Anderson & Corroon LLP, legal advisers to the Arrangers and the Facility Agent in Delaware, |
each substantially in the form distributed to the Original
Lenders before signing this Agreement and addressed to the Finance Parties at the date of that opinion.
| 3. | Other documents and evidence |
| 3.1.1 | Evidence that the agent for service of process in England and Wales referred to in Clause 42.2 (Service of process), has accepted
its appointment. |
| 3.1.2 | A copy of the Original Financial Statements. |
| 3.1.3 | Evidence that all fees, costs and expenses then due and payable from the Company under the Finance Documents have been or will be
paid by the first Utilisation Date. |
| 3.1.4 | Evidence that the USD200,000,000 revolving credit facility agreement originally dated 16 February 2017 and made between, among
others, the Company and Bank of America Europe Designated Activity Company, as amended and restated from time to time will be prepaid
and cancelled in full on or before the first Utilisation Date. |
Part B
Conditions
precedent required to be delivered by an Additional Guarantor
| 1. | Corporate documentation |
| 1.1.1 | An Accession Letter, duly executed by the Additional Guarantor and the Company. |
| 1.1.2 | A copy of the constitutional documents of the Additional Guarantor including, in respect of any Additional Guarantor who is a U.S.
Guarantor, copies of (i) its bylaws or similar governing document, (ii) its charter or certificate or articles of incorporation
or similar formation document, certified on a recent date by the Secretary of State or other relevant office of such Additional Guarantor's
jurisdiction of incorporation, which certificate lists (if such type of list is generally available in the applicable jurisdiction) the
charter documents on file in the office of such Secretary of State (or such other relevant office) and (iii) a good standing certificate
or similar document (including verification of tax status, if generally available in the applicable jurisdiction) with respect to such
Additional Guarantor, issued as of a recent date prior to the date of the Accession Letter by the Secretary of State or other appropriate
official of such Additional Guarantor's jurisdiction of organisation. |
| 1.1.3 | A copy of a resolution of the board of directors of the Additional Guarantor: |
| (A) | approving the terms of, and the transactions contemplated by, the Accession Letter and the Finance Documents and resolving that it
execute the Accession Letter; |
| (B) | authorising a specified person or persons to execute the Accession Letter on its behalf; and |
| (C) | authorising a specified person or persons, on its behalf, to sign and/or despatch all other documents and notices to be signed and/or
despatched by it under or in connection with the Finance Documents. |
| 1.1.4 | A specimen of the signature of each person authorised by the resolutions referred to in paragraph 1.1.3. |
| 1.1.5 | To the extent required by law or constitutional documents, a copy of a resolution, signed by all the holders of the issued shares
in the Additional Guarantor, approving the terms of, and the transactions contemplated by, the Finance Documents to which the Additional
Guarantor is a party. |
| 1.1.6 | To the extent required by law or constitutional documents, a copy of a resolution of the board of directors of each corporate shareholder
in the Additional Guarantor approving the resolution referred to in paragraph 1.1.5. |
| 1.1.7 | A certificate of an authorised signatory of the Additional Guarantor: |
| (A) | confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar
limit binding on it to be breached; and |
| (B) | certifying that each copy document specified in this Part B of this Schedule 2 is correct, complete and in full force and
effect as at a date no earlier than the date of the Accession Letter. |
The following legal opinions:
| 2.1.1 | a legal opinion of Herbert Smith Freehills LLP, legal advisers to the Facility Agent in England; |
| 2.1.2 | subject to paragraphs 2.1.3 and 2.1.4, a legal opinion of the legal advisers to the Facility Agent in the jurisdiction of the Additional
Guarantor; |
| 2.1.3 | if any Additional Guarantor is incorporated or organised under the laws of any state of the United States of America, customary legal
opinions of the legal advisers to the Arrangers; and |
| 2.1.4 | if any Additional Guarantor is executing a Finance Document which is governed by the law of any state of the United States of America,
customary legal opinions of the legal advisers to the Arrangers, |
each substantially in the form distributed to the Lenders
before signing the Accession Letter, and addressed to the Finance Parties at the date of that opinion.
| 3. | Other documents and evidence |
| 3.1.1 | In the case of an Additional Guarantor not incorporated in England and Wales, evidence that the agent for service of process in England
and Wales referred to in Clause 42.2 (Service of process), if not an Original Obligor, has accepted its appointment in relation
to the Additional Guarantor. |
| 3.1.2 | A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent (acting reasonably) determines
is necessary in connection with the entry into and performance of the transactions contemplated by the Accession Letter or for the validity
and enforceability of any Finance Document. |
| 3.1.3 | If available, a copy of the latest audited accounts of the Additional Guarantor. |
| 3.1.4 | Evidence that all expenses due and payable from the Company under this Agreement in respect of the Accession Letter have been paid. |
| 3.1.5 | Any information and evidence in respect of the Additional Guarantor required by any Finance Party and notified to the Company to enable
it to be satisfied with the results of all “know your customer” or other checks which it is required to carry out in relation
to such person. |
Schedule 3
Form of
Utilisation Request
| To: | BANK OF AMERICA EUROPE DESIGNATED ACTIVITY COMPANY as Facility Agent |
| From: | JANUS HENDERSON GROUP PLC |
JANUS HENDERSON
GROUP PLC – USD200,000,000 Credit Agreement
dated [ ] 2023 (as amended and/or restated from time to time, the "Agreement")
| 1. | We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation
Request unless given a different meaning in this Utilisation Request. |
| 2. | We wish to borrow a Loan on the following terms: |
| 2.1.1 | Proposed Utilisation Date: [●] (or, if that is not a Business Day, the next Business Day); |
| 2.1.2 | Currency of Loan: [●]; |
| 2.1.3 | Amount: [CURRENCY][●] or, if less, the Available Facility; and |
| 2.1.4 | Interest Period: [●]. |
| 3. | We confirm that each condition precedent under the Agreement which is required to be satisfied on the date of this Utilisation Request
is satisfied. |
| 4. | The proceeds of this Loan should be credited to [account]. |
| 5. | This Utilisation Request is irrevocable. |
By:
JANUS HENDERSON GROUP PLC
Schedule 4
Form of
Accordion Increase Confirmation
| To: | BANK OF AMERICA EUROPE DESIGNATED ACTIVITY COMPANY as Facility Agent |
| From: | [●] as Original Lender(s), and each person listed as an Accordion Lender in the Schedule (each, an "Accordion Lender") |
JANUS HENDERSON
GROUP PLC – USD200,000,000 Credit Agreement
dated [ ] 2023 (as amended and/or restated from time to time, the "Agreement")
We refer to the Agreement. This is an Accordion Increase Confirmation.
Terms defined in the Agreement have the same meaning in this Accordion Increase Confirmation unless given a different meaning in this
Accordion Increase Confirmation.
| 1. | We refer to Clause 2.4 (Accordion Increase in Commitments) of the Agreement, and to the Accordion Request dated [●]. |
| 2. | Each Accordion Lender confirms that it has agreed, with effect from the Accordion Increase Date, to assume the Accordion Commitment
specified opposite its name in the Schedule, in accordance with Clause 2.4 (Accordion Increase in Commitments) of the Agreement. |
| 3. | The proposed Accordion Increase Date is [●]. |
| 4. | By countersigning below, each Accordion Lender confirms that: |
| 4.1.1 | it agrees, with effect from the date of counter-signature of this Accordion Increase Confirmation by the Facility Agent or if later,
to become an Accordion Lender and to assume an Accordion Commitment in the amount(s) specified opposite its name in the Schedule;
and |
| 4.1.2 | it has performed all necessary "know your customer" or other similar checks under all applicable laws and regulations in
relation to the Company and the assumption by it of the Accordion Commitment(s). |
| 5. | [The Accordion Lender confirms, for the benefit of the Facility Agent and without liability to either Obligor, that it is: |
| 5.1.1 | [a Qualifying Lender (other than a Treaty Lender);] |
| 5.1.3 | [not a Qualifying Lender].12 |
| 6. | The Accordion Lender confirms that the person beneficially entitled to interest payable to it in respect of an advance under a Finance
Document is either: |
| 6.1.1 | a company resident in the UK for UK tax purposes; or |
| 6.1.2 | a partnership each member of which is: |
| (A) | a company so resident in the UK; or |
| (B) | a company not so resident in the UK which carries on a trade in the UK through a permanent establishment and which brings into account
in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect
of that advance that falls to it by reason of Part 17 of the CTA; or |
1 Include paragraphs 5 to 7 if the Accordion Lender is
a new lender.
2 Delete as applicable – each new Accordion Lender
is required to confirm which of these three categories it falls within.
| 6.1.3 | a company not so resident in the UK which carries on a trade in the UK through a permanent establishment and which brings into account
interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that
company.]3 |
| 7. | [The Accordion Lender confirms that it holds a passport under the HMRC DT Treaty Passport scheme (reference number [●]) and
is tax resident in [●]4, so that interest payable to it by borrowers is generally subject to full exemption from UK
withholding tax, and notifies the Company that it wishes that scheme to apply to the Agreement.]5 |
| 8. | The Facility Office and address, electronic mail address and attention details for notices to each Accordion Lender for the purposes
of Clause 31.2 (Addresses) of the Agreement are set out in the Schedule. |
| 9. | This Accordion Increase Confirmation 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 Accordion Increase Confirmation. |
| 10. | This Accordion Increase Confirmation and any non-contractual obligations arising out of or in connection with it are governed by English
law. |
| 11. | This Accordion Increase Confirmation has been entered into on the date stated at the beginning of this certificate. |
3 Include only if Accordion Lender is a UK Non-Bank Lender.
4 Insert jurisdiction of tax residence.
5 Include if Accordion Lender holds a passport under the
HMRC DT Treaty Passport scheme and wishes that scheme to apply to the Agreement.
THE SCHEDULE
Accordion Commitments/rights and obligations
to be assumed
Accordion Lender |
Accordion Commitment |
[●] |
[●] |
[●] |
[●] |
[insert Facility office address, email address and attention details
for notices and account details for payments]
[Accordion Lender] |
[Accordion Lender] |
|
|
By: |
By: |
|
|
[Accordion Lender] |
[Accordion Lender] |
|
|
By: |
By: |
This Accordion Increase Confirmation is accepted by the Facility Agent,
and the Accordion Increase Date is confirmed as [●].
Schedule 5
Form of
Transfer Certificate
| To: | BANK OF AMERICA EUROPE DESIGNATED ACTIVITY as Facility Agent |
| From: | [EXISTING LENDER] (the "Existing Lender") and [NEW LENDER] (the "New Lender") |
JANUS HENDERSON
GROUP PLC – USD200,000,000 Credit Agreement
dated [ ] 2023 (as amended and/or restated from time to time, the "Agreement")
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.
| 1. | The Existing Lender transfers by novation to the New Lender the Existing Lender's rights and obligations referred to in the Schedule
below in accordance with the terms of the Agreement. |
| 2. | The proposed Transfer Date is [●]. |
| 3. | The New Lender expressly acknowledges the limitations on the Existing Lender's obligations in respect of this Transfer Certificate
contained in the Agreement. |
| 4. | The administrative details of the New Lender for the purposes of the Agreement are set out in the Schedule. |
| 5. | The New Lender confirms, for the benefit of the Facility Agent and without liability to either Obligor, that it is: |
| 5.1.1 | [a Qualifying Lender (other than a Treaty Lender);] |
| 5.1.3 | [not a Qualifying Lender].6 |
| 6. | [The New Lender confirms that the person beneficially entitled to interest payable to it in respect of an advance under a Finance
Document is either: |
| 6.1.1 | a company resident in the UK for UK tax purposes; or |
| 6.1.2 | a partnership each member of which is: |
| (A) | a company so resident in the UK; or |
| (B) | a company not so resident in the UK which carries on a trade in the UK through a permanent establishment and which brings into account
in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect
of that advance that falls to it by reason of Part 17 of the CTA; or |
| 6.1.3 | a company not so resident in the UK which carries on a trade in the UK through a permanent establishment and which brings into account
interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that
company.]7 |
| 7. | [The New Lender confirms that it holds a passport under the HMRC DT Treaty Passport scheme (reference number [●]) and is tax
resident in [●]8, so that interest payable to it by borrowers is generally subject to full exemption from UK withholding
tax, and notifies the Company that it wishes that scheme to apply to the Agreement.]9 |
6 Delete as applicable – each New Lender is required
to confirm which of these three categories it falls within.
7 Include only if New Lender is a UK Non-Bank Lender.
8 Insert jurisdiction of tax residence.
9 Include if New Lender holds a passport under the HMRC
DT Treaty Passport scheme and wishes that scheme to apply to the Agreement.
| 8. | 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. |
| 9. | This Transfer Certificate and any non-contractual obligations arising out of or in connection with it are governed by English law. |
THE SCHEDULE
Rights and obligations
to be transferred by novation
[insert relevant details, including applicable Commitment (or part)]
Administrative
details of the New Lender
[insert details of Facility Office, address for notices and payment details etc.]
[EXISTING LENDER] |
|
[NEW LENDER] |
|
|
|
By: |
|
By: |
The Transfer Date is confirmed by the Facility Agent as [●].
BANK OF AMERICA EUROPE DESIGNATED ACTIVITY COMPANY
as Facility Agent for and on behalf of
each of the parties to the Agreement
(other than the Existing Lender and
the New Lender)
By:
Schedule 6
Form of
Assignment Agreement
| To: | BANK OF AMERICA EUROPE DESIGNATED ACTIVITY COMPANY as Facility Agent and the Company for and on behalf of each Obligor |
| From: | [EXISTING LENDER] (the "Existing Lender") and [NEW LENDER] (the "New Lender") |
JANUS HENDERSON
GROUP PLC – USD200,000,000 Credit Agreement
dated [ ] 2023 (as amended and/or restated from time to time, the "Agreement")
We refer to the Agreement. This is an Assignment Agreement. Terms defined
in the Agreement have the same meaning in this Assignment Agreement unless given a different meaning in this Assignment Agreement.
| 1. | In accordance with the terms of the Agreement: |
| 1.1.1 | the Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender specified in the Schedule; |
| 1.1.2 | to the extent the obligations referred to in paragraph 1.1.3 are effectively assumed by the New Lender, the Existing Lender is released
from its obligations under the Agreement specified in the Schedule; |
| 1.1.3 | the New Lender assumes obligations equivalent to those obligations of the Existing Lender under the Agreement specified in the Schedule;
and |
| 1.1.4 | the New Lender becomes a Lender under the Agreement and is bound by the terms of the Agreement as a Lender. |
| 2. | The proposed Transfer Date is [●]. |
| 3. | The New Lender expressly acknowledges the limitations on the Existing Lender's obligations in respect of this Assignment Agreement
contained in the Agreement. |
| 4. | The administrative details of the New Lender for the purposes of the Agreement are set out in the Schedule. |
| 5. | The New Lender confirms, for the benefit of the Facility Agent and without liability to either Obligor, that it is: |
| 5.1.1 | [a Qualifying Lender (other than a Treaty Lender);] |
| 5.1.3 | [not a Qualifying Lender].10 |
| 6. | [The New Lender confirms that the person beneficially entitled to interest payable to it in respect of an advance under a Finance
Document is either: |
| 6.1.1 | a company resident in the UK for UK tax purposes; or |
| 6.1.2 | a partnership each member of which is: |
| (A) | a company so resident in the UK; or |
| (B) | a company not so resident in the UK which carries on a trade in the UK through a permanent establishment and which brings into account
in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect
of that advance that falls to it by reason of Part 17 of the CTA; or |
| 10 | Delete as applicable – each New Lender is required to confirm which of these three categories it falls within. |
| 6.1.3 | a company not so resident in the UK which carries on a trade in the UK through a permanent establishment and which brings into account
interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that
company.]11 |
| 7. | [The New Lender confirms that it holds a passport under the HMRC DT Treaty Passport scheme (reference number [●]) and is tax
resident in [●]12, so that interest payable to it by borrowers is generally subject to full exemption from UK withholding
tax, and notifies the Company that it wishes that scheme to apply to the Agreement.13 |
| 8. | This Assignment Agreement acts as notice to the Facility Agent (on behalf of the Company and each Finance Party) of the assignment
referred to in this Assignment Agreement. |
| 9. | This Assignment Agreement 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 Assignment Agreement. |
| 10. | This Assignment Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law. |
| 11 | Include only if New Lender is a UK Non-Bank Lender. |
| 12 | Insert jurisdiction of tax residence. |
| 13 | Include if New Lender holds a passport under the HMRC DT Treaty Passport scheme and wishes that scheme to apply to the Agreement. |
THE SCHEDULE
Rights and obligations
to be transferred by assignment, assumption and release
[insert relevant details, including applicable Commitment (or part)]
Administrative
details of the New Lender
[insert details of Facility Office, address for notices and payment details etc.]
[EXISTING LENDER] |
|
[NEW LENDER] |
|
|
|
By: |
|
By: |
The Transfer Date is confirmed by the Facility Agent as [●].
BANK OF AMERICA EUROPE DESIGNATED ACTIVITY COMPANY
as Facility Agent, for and on behalf of
each of the parties to the Agreement
(other than the Existing Lender and
the New Lender)
By:
Schedule 7
Form of
Accession Letter
| To: | BANK OF AMERICA EUROPE DESIGNATED ACTIVITY as Facility Agent |
| From: | JANUS HENDERSON GROUP PLC and [PROPOSED GUARANTOR] |
JANUS HENDERSON
GROUP PLC – USD200,000,000 Credit Agreement
dated [ ] 2023 (as amended and/or restated from time to time, the "Agreement")
| 1. | We refer to the Agreement. This is an Accession Letter. Terms defined in the Agreement have the same meaning in this Accession Letter
unless given a different meaning in this Accession Letter. |
| 2. | [Name of company] agrees to become an Additional Guarantor and to be bound by the terms of the Agreement as an Additional Guarantor.
[Name of company] is a company duly incorporated under the laws of [name of relevant jurisdiction]. |
| 3. | [Name of company]'s administrative details are as follows: [●]. |
| 4. | This Accession Letter is intended to take effect as a deed. |
| 5. | This Accession Letter and any non-contractual obligations arising out of or in connection with it are governed by English law. |
JANUS HENDERSON GROUP PLC
By:
Schedule 8
Form of
Resignation Letter
| To: | BANK OF AMERICA EUROPE DESIGNATED ACTIVITY COMPANY as Facility Agent |
| From: | JANUS HENDERSON GROUP PLC and [RESIGNING GUARANTOR] |
JANUS HENDERSON
GROUP PLC – USD200,000,000 Credit Agreement
dated [ ] 2023 (as amended and/or restated from time to time, the "Agreement")
| 1. | We refer to the Agreement. This is a Resignation Letter. Terms defined in the Agreement have the same meaning in this Resignation
Letter unless given a different meaning in this Resignation Letter. |
| 2. | We request that [resigning Guarantor] be released from its obligations as a Guarantor under the Agreement. |
| 3.1.1 | no Default is continuing or would result from the acceptance of this request; |
| 3.1.2 | as at the date of this Resignation Letter [no amount owing by [resigning Guarantor] under any Finance Document as a Guarantor is outstanding];
and |
| 4. | This Resignation Letter and any non-contractual obligations arising out of or in connection with it are governed by English law. |
JANUS HENDERSON GROUP PLC |
[RESIGNING GUARANTOR] |
|
|
By: |
By: |
The Facility Agent confirms that this resignation takes effect on [●].
BANK OF AMERICA EUROPE DESIGNATED ACTIVITY COMPANY as Facility Agent
By:
Schedule 9
Form of
Increase Confirmation
| To: | BANK OF AMERICA EUROPE DESIGNATED ACTIVITY COMPANY as Facility Agent and JANUS HENDERSON GROUP PLC |
| From: | [the Increase Lender] (the "Increase Lender") |
JANUS HENDERSON
GROUP PLC – USD200,000,000 Credit Agreement
dated [ ] 2023 (as amended and/or restated from time to time, the "Facility Agreement")
| 1. | We refer to the Facility Agreement. This agreement (the Agreement) shall take effect as an Increase Confirmation for the purpose
of the Facility Agreement. Terms defined in the Facility Agreement have the same meaning in this Agreement unless given a different meaning
in this Agreement. |
| 2. | We refer to Clause 2.3 (Increase) of the Facility Agreement. |
| 3. | The Increase Lender agrees to assume and will assume all of the obligations corresponding to the Commitment specified in the Schedule
(the "Relevant Commitment") as if it was an Original Lender under the Facility Agreement. |
| 4. | The proposed date on which the increase in relation to the Increase Lender and the Relevant Commitment is to take effect (the "Increase
Date") is [●]. |
| 5. | On the Increase Date, the Increase Lender becomes party to the relevant Finance Documents as a Lender. |
| 6. | The Facility Office and address, email address and attention details for notices to the Increase Lender for the purposes of Clause
31.2 (Addresses) of the Facility Agreement are set out in the Schedule. |
| 7. | The Increase Lender expressly acknowledges the limitations on the Lenders' obligations referred to in Clause 2.3 (Increase)
of the Facility Agreement. |
| 8. | The Increase Lender confirms, for the benefit of the Facility Agent and without liability to either Obligor, that it is: |
| 8.1.1 | [a Qualifying Lender (other than a Treaty Lender);] |
| 8.1.3 | [not a Qualifying Lender].14 |
| 9. | [The Increase Lender confirms that the person beneficially entitled to interest payable to that Lender in respect of an advance under
a Finance Document is either: |
| 9.1.1 | a company resident in the UK for UK tax purposes; |
| 9.1.2 | a partnership each member of which is: |
| (A) | a company so resident in the UK; or |
| (B) | a company not so resident in the UK which carries on a trade in the UK through a permanent establishment and which brings into account
in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect
of that advance that falls to it by reason of Part 17 of the CTA; or |
| 14 | Delete as applicable – each Increase Lender is required
to confirm which of these three categories it falls within. |
| 9.1.3 | a company not so resident in the UK which carries on a trade in the UK through a permanent establishment and which brings into account
interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of
that company.]15 |
| [9]. | [The Increase Lender confirms that it holds a passport under the HMRC DT Treaty Passport scheme (reference number [●]) and is
tax resident in [●]16, so that interest payable to it by borrowers is generally subject to full exemption from UK withholding
tax and requests that the Parent notify the Company that it wishes the scheme to apply to the Facility Agreement.]17 |
| [9/10]. | This Agreement 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 Agreement. |
| [10/11]. | This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law. |
| [11/12]. | This Agreement has been entered into on the date stated at the beginning of this Agreement. |
| 15 | Include only if New Lender is a UK Non-Bank Lender i.e. falls
within paragraph (b) of the definition of "Qualifying Lender" in Clause 13.1 (Definitions). |
| 16 | * Insert jurisdiction of tax residence. |
| 17 | ** This confirmation must be included if the Increase Lender
holds a passport under the HMRC DT Treaty Passport scheme and wishes that scheme to apply to the Facility Agreement. |
THE SCHEDULE
Relevant Commitment/rights and obligations to
be assumed by the Increase Lender
[insert relevant details]
[Facility office address, email address and attention details for
notices and account details for payments]
This Agreement is accepted as an Increase
Confirmation for the purposes of the Facility Agreement by the Facility Agent, and the Increase Date is confirmed as [●].
Bank of America Europe Designated Activity Company |
|
By: |
Schedule 10
Reference
Rate Terms
Part A
Dollars
CURRENCY: |
Dollars. |
Cost of funds as a fallback |
|
Cost of funds will not apply as a fallback. |
Definitions |
|
|
|
Additional Business Days: |
An RFR Banking Day. |
Baseline CAS: |
|
|
|
Length of Interest Period or other period |
Baseline CAS (per cent. per annum) |
|
Less than or equal to one Month |
0.00 |
|
Less than or equal to three Months but greater than one Month |
0.10 |
Break Costs: |
None specified. |
Business Day Conventions (definition of "Month" and Clause 10.2 (Non-Business Days)): |
(a) If
any period is expressed to accrue by reference to a Month or any number of Months then, in respect of the last Month of that period:
(i) subject
to paragraph (iii) 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;
(ii) 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
(iii) 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.
(b) 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). |
Central Bank Rate: |
(a) The
short-term interest rate target set by the US Federal Open Market Committee as published by the Federal Reserve Bank of New York from
time to time; or
(b) if
that target is not a single figure, the arithmetic mean of:
(i) the
upper bound of the short-term interest rate target range set by the US Federal Open Market Committee and published by the Federal Reserve
Bank of New York; and
(ii) the
lower bound of that target range. |
Central Bank Rate Adjustment: |
In relation to the Central Bank Rate prevailing at close of business on any RFR Banking Day (relevant to that RFR), 20 per cent. trimmed arithmetic mean (calculated by the Facility Agent) of the Central Bank Rate Spreads for the five most immediately preceding RFR Banking Days (relevant to that RFR) for which the relevant RFR is available. |
Central Bank Rate Spread: |
In relation to any RFR Banking Day, the difference (expressed as a
percentage rate per annum) calculated by the Facility Agent of:
(a) the
RFR for that RFR Banking Day; and
(b) the
Central Bank Rate prevailing at the close of business on that RFR Banking Day (relevant to that RFR). |
Daily Rate: |
The Daily Rate for any RFR Banking Day is:
(a) the
RFR for that RFR Banking Day; or
(b) if
the RFR is not available for that RFR Banking Day, the percentage rate per annum which is the aggregate of:
(i) the
Central Bank Rate for that RFR Banking Day; and
(ii) the
applicable Central Bank Rate Adjustment; or
(c) if
paragraph (b) above applies but the Central Bank Rate for that RFR Banking Day is not available, the percentage rate per annum
which is the aggregate of:
(i) the
most recent Central Bank Rate for a day which is no more than five RFR Banking Days before that RFR Banking Day; and
(ii) the
applicable Central Bank Rate Adjustment, rounded, in either case, to five decimal places and if, in either case, the aggregate of that
rate and the applicable Baseline CAS is less than zero, the Daily Rate shall be deemed to be such a rate that the aggregate of the Daily
Rate and the applicable Baseline CAS is zero. |
Lookback Period: |
Five RFR Banking Days. |
Market Disruption Rate: |
None specified. |
Relevant Market: |
The market for overnight cash borrowing collateralised by US Government securities. |
Reporting Day: |
The Business Day which follows the day which is the Lookback Period prior to the last day of the Interest Period. |
RFR: |
The secured overnight financing rate ("SOFR") administered by the Federal Reserve Bank of New York (or any other person which takes over the administration of that rate) published by the Federal Reserve Bank of New York (or any other person which takes over the publication of that rate). |
RFR Banking Day: |
Any day other than:
(a) a
Saturday or Sunday; and
(b) a
day on which the Securities Industry and Financial Markets Association (or any successor organisation) recommends that the fixed income
departments of its members be closed for the entire day for purposes of trading in US Government securities. |
Interest Periods |
|
Periods capable of selection as Interest Periods (Clause 10.1.2 (Selection of Interest Periods)): |
One, two or three Months. |
Part B
Sterling
CURRENCY: |
Sterling. |
Cost of funds as a fallback |
|
Cost of funds will not apply as a fallback. |
|
Definitions |
|
Additional Business Days: |
An RFR Banking Day. |
Break Costs: |
None specified. |
Baseline CAS: |
|
|
Length of Interest Period or other period |
Baseline CAS (per cent. per annum) |
|
Less than or equal to one Month |
0.00 |
|
Less than or equal to three Months but greater than one Month |
0.10 |
Business Day Conventions (definition of "Month" and Clause 10.2 (Non-Business Days)): |
(a) If
any period is expressed to accrue by reference to a Month or any number of Months then, in respect of the last Month of that period:
(i) subject
to paragraph (iii) 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;
(ii) 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
(iii) 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.
(b) 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). |
Central Bank Rate: |
The Bank of England's Bank Rate as published by the Bank of England from time to time. |
Central Bank Rate Adjustment: |
In relation to the Central Bank Rate prevailing at close of business on any RFR Banking Day (relevant to that RFR), 20 per cent. trimmed arithmetic mean (calculated by the Facility Agent) of the Central Bank Rate Spreads for the five most immediately preceding RFR Banking Days (relevant to that RFR) for which the relevant RFR is available. |
Central Bank Rate Spread: |
In relation to any RFR Banking Day, the difference (expressed as a
percentage rate per annum) calculated by the Facility Agent of:
(a) the
RFR for that RFR Banking Day; and
(b) the
Central Bank Rate prevailing at the close of business on that RFR Banking Day (relevant to that RFR). |
Daily Rate: |
The Daily Rate for any RFR Banking Day is:
(a) the
RFR for that RFR Banking Day; or
(b) if
the RFR is not available for that RFR Banking Day, the percentage rate per annum which is the aggregate of:
(i) the
Central Bank Rate for that RFR Banking Day; and
(ii) the
applicable Central Bank Rate Adjustment; or
(c) if
paragraph (b) above applies but the Central Bank Rate for that RFR Banking Day is not available, the percentage rate per annum which
is the aggregate of:
(i) the
most recent Central Bank Rate for a day which is no more than five RFR Banking Days before that RFR Banking Day; and
(ii) the
applicable Central Bank Rate Adjustment, rounded, in either case, to four decimal places and if, in either case, the aggregate of
that rate and the applicable Baseline CAS is less than zero, the Daily Rate shall be deemed to be such a rate that the aggregate of
the Daily Rate and the applicable Baseline CAS is zero. |
Lookback Period: |
Five RFR Banking Days. |
Market Disruption Rate: |
None specified. |
Relevant Market: |
The sterling wholesale market. |
Reporting Day: |
The day which is the Lookback Period prior to the last day of the Interest Period or, if that day is not a Business Day, the immediately following Business Day. |
RFR: |
The sterling overnight index average ("SONIA") reference rate displayed on the relevant screen of any authorised distributor of that reference rate. |
RFR Banking Day: |
A day (other than a Saturday or Sunday) on which banks are open for general business in London. |
Interest Periods |
|
Periods capable of selection as Interest Periods (Clause 10.1.2 (Selection of Interest Periods)): |
One, two or three Months. |
Part C
Euro
CURRENCY: |
Euro. |
Compounded Reference Rate as a fallback
Compounded Reference Rate will not apply as a fallback. |
Cost of funds as a fallback
Cost of funds will apply as a fallback. |
Definitions |
Additional Business Days: |
A TARGET Day. |
Alternative Term Rate: |
None specified. |
Alternative Term Rate Adjustment: |
None specified. |
Break Costs: |
The amount (if any) by which:
(a) the
interest (excluding Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation
in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount
or Unpaid Sum received been paid on the last day of that Interest Period;
exceeds:
(b) the
amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit
with a leading bank 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 Conventions (definition of "Month" and Clause 10.2 (Non-Business Days)): |
(a) If
any period is expressed to accrue by reference to a Month or any number of Months then, in respect of the last Month of that period:
(i) subject
to paragraph (iii) 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;
(ii) 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
(iii) 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.
(b) 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). |
Fallback Interest Period: |
One week. |
Market Disruption Rate: |
The Term Reference Rate. |
Primary Term Rate: |
The euro interbank offered rate ("EURIBOR") administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed on page EURIBOR01 of the Thomson Reuters screen. |
Quotation Day: |
Two TARGET Days before the first day of the relevant Interest Period (unless market practice differs in the Relevant Market, in which case the Quotation Day will be determined by the Facility Agent in accordance with market practice in the Relevant Market (and if quotations would normally be given on more than one day, the Quotation Day will be the last of those days)). |
Quotation Time: |
Quotation Day 11:00 a.m. (Brussels time). |
Relevant Market: |
The European interbank market. |
Reporting Day: |
The Quotation Day. |
Interest Periods |
|
Periods capable of selection as Interest Periods (Clause 10.1.2 (Selection of Interest Periods)): |
One, three or six Months. |
Reporting Times |
|
Deadline for Lenders to report market disruption in accordance with Clause 11.3 (Market disruption): |
Close of business in London on the Reporting Day for the relevant Loan. |
Deadline for Lenders to report their cost of funds in accordance with Clause 11.4 (Cost of funds): |
Close of business on the date falling two Business Days after the Reporting Day for the relevant Loan (or, if earlier, on the date falling two Business Days before the date on which interest is due to be paid in respect of the Interest Period for that Loan). |
Part D
AUD
CURRENCY: |
AUD. |
Compounded Reference Rate as a fallback
Compounded Reference Rate will not apply as a fallback.
|
Cost of funds as a fallback
Cost of funds will apply as a fallback.
|
Definitions |
|
Break Costs: |
The amount (if any) by which:
(a) the
interest (excluding Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation
in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount
or Unpaid Sum received been paid on the last day of that Interest Period;
exceeds:
(b) the
amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit
with a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of the current
Interest Period. |
Additional Business Day: |
Any day on which banks are open for general business in Sydney. |
Business Day Conventions (definition of "Month" and Clause 10.2 (Non-Business Days)): |
(a) If
any period is expressed to accrue by reference to a Month or any number of Months then, in respect of the last Month of that period:
(i) if
the numerically corresponding day is not a Business Day, that period will 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; and
(ii) if
there is no numerically corresponding day in the calendar month in which that period is to end, that period will end on the last Business
Day in that calendar month.
(b) 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).
(c) If
the Facility Agent agrees, the Company may select an Interest Period which ends on a day other than the last day of a Month (but no more
than five days before or after the last day of the relevant Month), where necessary to ensure that the Interest Period is in the same
half-month maturity pool used by market convention for determining rates that would have applied had the selection of either or both of
the maturity pool or the selection of the Interest Period not followed a modified following business day convention. |
Fallback Interest Period: |
One Month. |
Quotation Day: |
The first day of the relevant Interest Period (unless market practice differs in the Relevant Market, in which case the Quotation Day will be determined by the Facility Agent in accordance with market practice in the Relevant Market (and if quotations would normally be given on more than one day, the Quotation Day will be the last of those days)). |
Quotation Time: |
Quotation Day as at or about 10:10 a.m. (Sydney time) but no later than 10:30 a.m. (Sydney time). |
Relevant Market: |
The Australian interbank market for bank accepted bills and negotiable certificates of deposit. |
Reporting Day: |
The Quotation Day. |
Market Disruption Rate: |
The Term Reference Rate. |
Primary Term Rate: |
The Australian bank bill swap reference rate ("BBSW") administered by the Australian Financial Markets Association (or any other person which takes over the administration of that rate) for the relevant period displayed (before any correction, recalculation or republication by the administrator) on page BBSW of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate). |
Interest Periods |
|
Periods capable of selection as Interest Periods for a Loan (Clause 10.1.2 (Selection of Interest Periods)): |
One, three or six Months. |
Reporting times |
|
Deadline for Lenders to report market disruption (Clause 11.3 (Market disruption)): |
Close of business in London on the Reporting Day for the relevant Interest Period. |
Deadline for Lenders to report their cost of funds in accordance with Clause 11.4 (Cost of funds): |
Close of business on the date falling two Business Days after the Reporting Day for the relevant Loan (or, if earlier, on the date falling two Business Days before the date on which interest is due to be paid in respect of the Interest Period for that Loan). |
Schedule 11
Daily
Non-Cumulative Compounded RFR Rate
The "Daily Non-Cumulative Compounded RFR Rate" for
any RFR Banking Day "i" during an Interest Period for a Compounded Rate Loan is the percentage rate per annum (without
rounding) calculated as set out below:
where:
"UCCDRi "means
the Unannualised Cumulative Compounded Daily Rate for that RFR Banking Day "i";
"UCCDRi-1 "means,
in relation to that RFR Banking Day "i", the Unannualised Cumulative Compounded Daily Rate for the immediately preceding
RFR Banking Day (if any) during that Interest Period;
"dcc "means 360
or, in any case where market practice in the Relevant Market is to use a different number for quoting the number of days in a year, that
number;
"ni" means the
number of calendar days from, and including, that RFR Banking Day "i" up to, but excluding, the following RFR Banking
Day; and
the "Unannualised Cumulative Compounded Daily Rate"
for any RFR Banking Day (the "Cumulated RFR Banking Day") during that Interest Period is the result of the below calculation
(without rounding):
where:
"ACCDR" means
the Annualised Cumulative Compounded Daily Rate for that Cumulated RFR Banking Day;
"tni" means the
number of calendar days from, and including, the first day of the Cumulation Period to, but excluding, the RFR Banking Day which immediately
follows the last day of the Cumulation Period;
"Cumulation Period"
means the period from, and including, the first RFR Banking Day of that Interest Period to, and including, that Cumulated RFR Banking
Day;
"dcc "has the
meaning given to that term above; and
the "Annualised Cumulative Compounded Daily Rate"
for that Cumulated RFR Banking Day is the percentage rate per annum (without rounding) calculated as set out below:
where:
"d0" means the
number of RFR Banking Days in the Cumulation Period;
"Cumulation Period"
has the meaning given to that term above;
"i" means a series
of whole numbers from one to d0, each representing the relevant RFR Banking Day in chronological order in the Cumulation Period;
"DailyRatei-LP"
means, for any RFR Banking Day "i" in the Cumulation Period, the Daily Rate for the RFR Banking Day which is the applicable
Lookback Period prior to that RFR Banking Day "i";
"ni" means, for
any RFR Banking Day "i" in the Cumulation Period, the number of calendar days from, and including, that RFR Banking Day
"i" up to, but excluding, the following RFR Banking Day;
"dcc "has the
meaning given to that term above; and
"tni" has the
meaning given to that term above.
Schedule 12
Form of
Compliance Certificate
| To: | BANK OF AMERICA EUROPE DESIGNATED ACTIVITY COMPANY as Facility Agent |
| From: | JANUS HENDERSON GROUP PLC |
JANUS HENDERSON
GROUP PLC – USD200,000,000 Credit Agreement
dated [ ] 2023 (as amended and/or restated from time to time, the "Agreement")
| 1. | We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement have the same meaning in this Compliance
Certificate unless given a different meaning in this Compliance Certificate. |
| 2. | We confirm that as at [relevant testing date or for the Measurement Period ending on that date]: |
[Adjusted Consolidated EBITDA was [●] and Consolidated
Total Net Borrowings were [●]; therefore, the ratio of Consolidated Total Net Borrowings to Adjusted Consolidated EBITDA was [●]:1;
and]
| 3. | [We set out below calculations establishing the figures in paragraph 2: |
[●].]
| 4. | [We confirm that the following companies were Material Subsidiaries at [relevant testing date]: |
[●].]18
| 5. | [We confirm that as at [relevant testing date] [no Default is continuing]/[the following Default[s] [is/are] continuing and the following
steps are being taken to remedy [it/them]: |
[●]].]
JANUS HENDERSON GROUP PLC
By:
| 18 | To be included in the Compliance Certificate that accompanies
the Company's annual audited financial statements only. |
Schedule 13
Existing
Security
NONE
Schedule 14
Timetables
|
Loans in euro |
Loans in USD or
sterling |
Loans in other
currencies |
Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of a Utilisation Request)). |
U-3
9.30 a.m. |
U-1
9.30 a.m. |
U-3
9.30 a.m. |
|
|
|
|
Facility Agent determines (in relation to a Loan) the Base Currency Amount of the Loan, if required (Clause 5.4 (Lenders' participation)) and notifies the Lenders of the Loan (Clause 5.4 (Lenders' participation)). |
U-3
Noon |
U-1
Noon |
U-3
Noon |
|
|
|
|
Facility Agent notifies the Company if a currency is approved as an Optional Currency (Clause 6.2 (Conditions relating to Optional Currencies)). |
- |
- |
On the day which is two Business Days before the first day of the Interest Period for the relevant Loan. |
|
|
|
|
Lender notifies the Facility Agent in respect of unavailability of a currency (Clause 6.3 (Unavailability of a currency for a Loan)). |
- |
- |
9.30 a.m.
on the day which is two Business Days before the first day of the Interest Period for the relevant Loan. |
|
|
|
|
Facility Agent notifies the Company in respect of unavailability of a currency (Clause 6.3 (Unavailability of a currency for a Loan)). |
- |
- |
5.30 p.m.
on the day which is two Business Days before the first day of the Interest
Period for the relevant Loan. |
|
|
|
|
EURIBOR is fixed. |
Quotation Day 11:00 a.m. (Brussels time). |
- |
- |
|
|
|
|
BBSW is fixed. |
- |
- |
Quotation Day as at or about 10:10 a.m. (Sydney time) but no later than 10:30 a.m. (Sydney time). |
"U" |
= |
date of utilisation |
"U-X" |
= |
Business Days prior to date of utilisation |
SIGNATORIES
THE COMPANY
JANUS HENDERSON GROUP PLC
By:
THE ORIGINAL GUARANTOR
JANUS HENDERSON US (HOLDINGS) INC.
By:
[Facility
Agreement – Signature pages]
THE COORDINATOR, BOOKRUNNER AND MANDATED LEAD ARRANGER
BANK OF AMERICA EUROPE DESIGNATED ACTIVITY COMPANY
By:
Address:
Email:
Attention:
[Facility
Agreement – Signature pages]
THE BOOKRUNNER AND MANDATED LEAD ARRANGER
CITIBANK, N.A.
By:
Address:
Email:
Attention:
[Facility
Agreement – Signature pages]
THE MANDATED LEAD ARRANGERS
BNP PARIBAS, LONDON BRANCH
By:
By:
Address:
Email:
Attention:
[Facility Agreement –
Signature pages]
NATWEST MARKETS PLC
By:
Address:
Email:
Attention:
[Facility Agreement – Signature pages]
STATE STREET BANK AND TRUST COMPANY
By:
Address:
Email:
Attention:
[Facility Agreement –
Signature pages]
WELLS FARGO BANK, NATIONAL ASSOCIATION
By:
Address:
Email:
Attention:
[Facility Agreement –
Signature pages]
THE FACILITY AGENT
BANK OF AMERICA EUROPE DESIGNATED ACTIVITY COMPANY
By:
[Facility
Agreement – Signature pages]
THE ORIGINAL LENDERS
BANK OF AMERICA EUROPE DESIGNATED ACTIVITY COMPANY
By:
[Facility
Agreement – Signature pages]
BNP PARIBAS, LONDON BRANCH
By:
By:
[Facility Agreement –
Signature pages]
CITIBANK, N.A.
By:
[Facility Agreement –
Signature pages]
NATWEST MARKETS PLC
By:
[Facility Agreement –
Signature pages]
STATE STREET BANK AND TRUST COMPANY
By:
[Facility Agreement –
Signature pages]
WELLS FARGO BANK, NATIONAL ASSOCIATION
By:
[Facility
Agreement – Signature pages]
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