EX-10.1 2 ecpg-2015331ex101.htm EXHIBIT 10.1 ECPG-2015.3.31 Ex 10.1
 
Exhibit 10.1

EXECUTION VERSION



 


 
 
 
 
 
 
AMENDMENT AGREEMENT
DATED _5__ FEBRUARY 2015
FOR
CABOT FINANCIAL LIMITED
AS PARENT
WITH
J.P. MORGAN EUROPE LIMITED
ACTING AS AGENT

 
RELATING TO A SENIOR FACILITIES AGREEMENT
ORIGINALLY DATED 20 SEPTEMBER 2012
 





    




 


CONTENTS
Clause
Page
1.
Definitions and Interpretation
1

2.
Representations
2

3.
Amendment and Restatement
3

4.
New Lenders and Commitment Increases
3

5.
Continuity and Further Assurance
7

6.
Fees, Costs and Expenses
8

7.
Consents and waiver
8

8.
Miscellaneous
9

9.
Governing Law
9

Schedule 1 The Parties
 
 
10

Part I The Borrowers
 
 
10

Part II The Guarantors
 
 
10

Part III The Existing Lenders
 
 
12

Part IV The New Lenders
 
 
13

Schedule 2 Conditions Precedent to the Effective Date
14

Schedule 3 Restated Agreement
17



 
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THIS AGREEMENT is dated __5__ February 2015 and made between:
(1)
CABOT FINANCIAL LIMITED in its capacity as Parent (the "Parent");
(2)
THE SUBSIDIARIES of the Parent listed in Part I of Schedule 1 (The Parties) as borrowers (the "Borrowers");
(3)
THE COMPANIES listed in Part II of Schedule 1 (The Parties) as guarantors (the "Guarantors");
(4)
CABOT CREDIT MANAGEMENT LIMITED, a private limited liability company incorporated under the laws of England and Wales with company registration number 5754978 and with its registered office at 1 Kings Hill Avenue, Kings Hill, West Malling, Kent, ME19 4UA as another guarantor ("CCML");
(5)
THE FINANCIAL INSTITUTIONS listed in Part III of Schedule 1 (The Parties) as existing lenders (the "Existing Lenders");
(6)
THE FINANCIAL INSTITUTIONS listed in Part IV of Schedule 1 (The Parties) as new lenders (the "New Lenders");
(7)
HSBC BANK PLC as a new arranger (the "New Arranger");
(8)
J.P. MORGAN EUROPE LIMITED as agent of the other Finance Parties (the "Agent");
(9)
J.P. MORGAN EUROPE LIMITED as security agent for the Secured Parties (the "Security Agent"); and
(10)
J.P. MORGAN EUROPE LIMITED as security agent for the Secured Parties (as defined in the Marlin Intercreditor Agreement (the "Marlin Security Agent")).
IT IS AGREED as follows:
1.
DEFINITIONS AND INTERPRETATION
1.1
Definitions
In this Agreement:
"Amended Facility Agreement" means the Original Facility Agreement, as amended and restated by this Agreement.
"Effective Date" means the later of (i) date on which the Agent confirms to the Existing Lenders, the New Lenders and the Parent that it has received each of the documents and other evidence listed in Schedule 2 (Conditions Precedent to the Effective Date) in form and substance satisfactory to the Agent and (ii) 10 February 2015.
"Guarantee Obligations" means the guarantee and indemnity obligations of a Guarantor contained in the Original Facility Agreement.

 
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"Cabot Debenture" means the English law composite debenture dated 20 September 2012 granted by, among others, the Parent in favour of the Security Agent.
"Marlin Credit Facility Lender" has the meaning given to the term "Credit Facility Lender" in the Marlin Intercreditor Agreement.
"Marlin Debenture" means the English law composite debenture dated 25 July 2013 granted by, among others, Marlin Financial Intermediate Limited in favour of the Security Agent.
Marlin Intercreditor Agreement” means the intercreditor agreement dated 25 July 2013, between, amongst others, Marlin Financial Intermediate II Limited as parent, The Bank of New York Mellon, London Branch as senior note trustee and The Royal Bank of Scotland plc as security trustee, as amended and/or restated from time to time.
"Original Facility Agreement" means the facility agreement dated 20 September 2012 between the Parent, the Original Borrowers, the Original Guarantors, CCML, the Agent, the Arranger and the Lenders as amended from time to time prior to the date of this Agreement.
"Secured Obligations" has the meaning given to it in the Intercreditor Agreement.
1.2
Incorporation of defined terms
(a)
Unless a contrary indication appears, a term defined in the Original Facility Agreement has the same meaning in this Agreement.
(b)
The principles of construction set out in the Original Facility Agreement shall have effect as if set out in this Agreement.
1.3
Clauses
In this Agreement any reference to a "Clause" or a "Schedule" is, unless the context otherwise requires, a reference to a Clause in or a Schedule to this Agreement.
1.4
Third party rights
A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement.
1.5
Designation
In accordance with the Original Facility Agreement, each of the Parent and the Agent designates this Agreement as a Finance Document.
2.
REPRESENTATIONS
The Repeating Representations are deemed to be made by each Obligor (and CCML makes the representations and warranties set out in clause 24.1 (Status) to 24.6 (Governing law and enforcement) of the Original Facility Agreement with respect to itself only) (by reference to the facts and circumstances then existing) on:

 
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(a)
the date of this Agreement; and
(b)
the Effective Date,
and references to "this Agreement" or to the "Transaction Documents" in the Repeating Representations (or the representations and warranties made by CCML referred to above) shall be construed as references to this Agreement and to the Original Facility Agreement and on the Effective Date, to the Amended Facility Agreement.
3.
AMENDMENT AND RESTATEMENT
With effect from the Effective Date, the Original Facility Agreement shall be amended and restated so that it shall be read and construed for all purposes as set out in Schedule 3 (Restated Agreement).
4.
NEW LENDERS AND COMMITMENT INCREASES
4.1
New Lender accession
On the Effective Date:
(a)
each New Lender will become a Lender under the Amended Facility Agreement with a Commitment as set out in the relevant column entitled "2015 Effective Date Commitment" opposite its name in Part IV of Schedule 1 (The Parties); and
(b)
the Commitments of each of the Existing Lenders other than JPMorgan Chase Bank N.A., London Branch will be increased to the amount set out in the relevant column entitled "2015 Effective Date Commitment" opposite its name in Part III of Schedule 1 (The Parties).
4.2
New Arranger accession
On the Effective Date, the New Arranger will become an Arranger under the Amended Facility Agreement.
4.3
Intercreditor Agreement
With reference to clauses 20.4 (Changes of RCF Lender) and 20.12 (Creditor/Creditor Representative Accession Undertaking) of the Intercreditor Agreement, in consideration for (i) each New Lender being accepted as a RCF Lender and (ii) the New Arranger being accepted as an Arranger for the purposes of the Intercreditor Agreement (and as defined therein), each New Lender and the New Arranger confirms for the benefit of the Security Agent for itself and each of the other parties to the Intercreditor Agreement that, as from the Effective Date, it intends to be a party to the Intercreditor Agreement as a RCF Lender (in the case of the New Lenders) and as an Arranger (in the case of the New Arranger) and undertakes to perform all the obligations expressed in the Intercreditor Agreement to be assumed by a RCF Lender (in the case of the New Lenders) or by an Arranger (in the case of the New Arranger) and agrees that it shall be bound by all the

 
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provisions of the Intercreditor Agreement, as if it had been an original party to the Intercreditor Agreement.
4.4
Marlin Intercreditor Agreement
With reference to clauses 20.4 (Changes of RCF Lender) and 20.12 (Creditor/Creditor Representative Accession Undertaking) of the Marlin Intercreditor Agreement, in consideration for (i) each New Lender being accepted as a Marlin Credit Facility Lender and (ii) the New Arranger being accepted as an Arranger for the purposes of the Marlin Intercreditor Agreement, each New Lender and the New Arranger confirms for the benefit of the Marlin Security Agent for itself and each of the other parties to the Marlin Intercreditor Agreement that, as from the Effective Date, it intends to be a party to the Marlin Intercreditor Agreement as a Marlin Credit Facility Lender (in the case of the New Lenders) and as an Arranger (in the case of the New Arranger) and undertakes to perform all the obligations expressed in the Marlin Intercreditor Agreement to be assumed by a Marlin Credit Facility Lender (in the case of the New Lenders) or by an Arranger (in the case of the New Arranger) and agrees that it shall be bound by all the provisions of the Marlin Intercreditor Agreement, as if it had been an original party to the Marlin Intercreditor Agreement.
4.5
Amounts payable on or before the Effective Date
Any amounts payable to the Existing Lenders by the Obligors pursuant to any Finance Document on or before the Effective Date (including, without limitation, all interest, fees and commission payable to the Existing Lenders on the Effective Date) in respect of any period ending on or prior to the Effective Date shall be for the account of the Existing Lenders and none of the New Lenders shall have any interest in, or any rights in respect of, any such amount.
4.6
Limitation of responsibility of Existing Lenders
(a)
Each New Lender confirms to each Existing Lender and the other Finance Parties that it:
(i)
has received a copy of the Original Facility Agreement together with such other information as it has required in connection with this transaction;
(ii)
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and the Amended Facility Agreement and has not relied exclusively on any information provided to it by any Existing Lender in connection with any Finance Document; and
(iii)
will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.

 
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(b)
Unless expressly agreed to the contrary, the Existing Lenders make no representation or warranty and assume no responsibility to the New Lenders for:
(i)
the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents;
(ii)
the financial condition of any Obligor;
(iii)
the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or
(iv)
the accuracy of any statements (whether written or oral) made in or in connection with the Finance Documents or any other document,
and any representations or warranties implied by law are excluded.
(c)
Nothing in any Finance Document obliges any Existing Lender to:
(i)
accept a re-transfer from any New Lender of any of the rights and obligations transferred by novation under this Agreement; or
(ii)
support any losses directly or indirectly incurred by a New Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise.
4.7
Administrative Details
Each New Lender confirms that it has delivered to the Agent its Facility Office details and address, fax number and attention details for the purposes of clause 38 (Notices) of the Amended Facility Agreement.
4.8
Lenders' participations
(a)
By not later than 1:00 p.m. three Business Days before the Effective Date (in respect of any relevant Loan requested in EUR) and 1:00 p.m. one Business Day before the Effective Date (in respect of any relevant Loan requested in GBP) the Agent shall notify each Existing Lender and each New Lender of:
(i)
the Base Currency Amount, the amount and the currency of each Loan requested, pursuant to a Utilisation Request, to be made on the Effective Date and the amount of its participation in that new Loan; and
(ii)
to the extent that any Loan to be made on the Effective Date is to be applied in refinancing any Loan maturing on the Effective Date in accordance with clause 10.1(c) of the Amended Facility Agreement, the cash amount to be made available by an Existing Lender in respect of its participation in that Loan as determined in accordance with that clause 10.1(c) (in respect of each Existing Lender, its "Cash Participation").
(b)
The amount of each Existing Lender's and each New Lender's participation in each new Loan referred to in paragraph (a) of this Clause 4.8 (Lenders'

 
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participations) will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to the making of the Loan.
(c)
Each Existing Lender and each New Lender shall make its participation (or, where relevant, its Cash Participation) in each Loan referred to in paragraph (a) of this Clause 4.8 (Lenders' participations) available by the Effective Date through its Facility Office.
(d)
Unless otherwise expressly specified, the Agent's account details for any payments to be made to it in connection with this Agreement or the Amended Facility Agreement on the Effective Date are:
For payments in GBP:
 
Pay to (Name of Bank):
J P Morgan Europe Limited, London (CHASGB22)
Account Number:
GB82CHAS60924203043504
Direct Sort Code:
40-52-06

For payments in EUR:
 
Pay to (Name of Bank):
J P Morgan Chase Bank, Frankfurt (Swift ID: CHASDEFX)
Account Number:
DE93501108006001600037
Account Name:
J P Morgan Europe Limited (Swift ID: CHASGB22)
4.9
New Lender Status Confirmation
Each New Lender confirms:
(a)
that it is not a Sponsor Affiliate;
(b)
that it is not incorporated or established, and does not carry on business, in a jurisdiction that is a Sanctioned Country;
(c)
that it is not (i) listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or by the United Nations Security Council, the European Union or any EU member state, (ii) operating, organized or resident in a Sanctioned Country or (iii) owned or controlled by a person or persons to whom paragraphs (i) or (ii) above apply;
(d)
that it is not a Competitor; and

 
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(e)
for the benefit of the Agent and without liability to any Obligor, that its status for the purpose of clause 18.5 (Lender Status Confirmation) of the Amended Facility Agreement is as set out against its name in Part IV (The New Lenders) of Schedule 1 (The Parties).
4.10
Tax Confirmation
Shawbrook Bank Limited confirms that the person beneficially entitled to interest payable to that New Lender in respect of an advance under a Finance Document is either:
(a)
a company resident in the United Kingdom for United Kingdom tax purposes; or
(b)
a partnership each member of which is:
(i)
a company so resident in the United Kingdom; or
(ii)
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (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 so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.
5.
CONTINUITY AND FURTHER ASSURANCE
5.1
Continuing obligations
The provisions of the Original Facility Agreement and the other Finance Documents shall, save as amended by this Agreement, continue in full force and effect.
5.2
Confirmation of Guarantee Obligations
For the avoidance of doubt, each Guarantor and CCML confirms for the benefit of the Finance Parties that all Guarantee Obligations owed by it under the Amended Facility Agreement shall (a) remain in full force and effect notwithstanding the amendments referred to in Clause 3 (Amendment and Restatement) and (b) extend to any new obligations assumed by any Obligor under the Finance Documents as a result of this Agreement (including, but not limited to, under the Amended Facility Agreement).
5.3
Confirmation of Security
For the avoidance of doubt, each Obligor and CCML confirms:

 
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(a)
for the benefit of the Secured Parties that the Security created by it pursuant to each Transaction Security Document to which it is a party shall (a) remain in full force and effect notwithstanding the amendments referred to in Clause 3 (Amendment and Restatement) and (b) continue to secure all debts and obligations which are expressed to be Secured Obligations (each term as defined in the Intercreditor Agreement); and
(b)
for the benefit of the Secured Parties that the Security created by it pursuant to each Transaction Security Document to which it is a party shall (a) remain in full force and effect notwithstanding the amendments referred to in Clause 3 (Amendment and Restatement) and (b) continue to secure all debts and obligations which are expressed to be Secured Obligations (each term as defined in the Marlin Intercreditor Agreement),
each case including, but not limited to, its obligations under the Amended Facility Agreement.
5.4
Further assurance
The Parent shall and shall procure that each other Obligor and CCML shall, at the request of the Agent and at such Obligor's own expense, do all such acts and things necessary or desirable to give effect to the amendments effected or to be effected pursuant to this Agreement.
6.
FEES, COSTS AND EXPENSES
6.1
Arrangement fee
The Parent shall pay to the Agent (for the account of the Arranger) an arrangement fee in the amount and at the times agreed in a Fee Letter.
6.2
Transaction expenses
The Parent shall promptly on demand pay the Agent the amount of all costs and expenses (including but not limited to legal fees) reasonably incurred by any of them in connection with the negotiation, preparation, printing and execution of this Agreement and any other documents referred to in this Agreement.
7.
CONSENTS AND WAIVER
The Parent, each other Obligor, CCML, the Security Agent, the Agent and each of the other Finance Parties each:
(a)
consent to the New Lenders becoming Lenders;
(b)
waive the requirements of clause 30 (Changes to the Lenders) of the Original Facility Agreement for the purposes of this Agreement and for the transfers by novation effected pursuant to this Agreement; and
(c)
consent to the New Arranger becoming an Arranger.

 
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8.
MISCELLANEOUS
8.1
Incorporation of terms
The provisions of clause 38 (Notices), clause 40 (Partial invalidity), clause 41 (Remedies and waivers) and clause 46 (Enforcement) of the Original Facility Agreement shall be incorporated into this Agreement as if set out in full in this Agreement and as if references in those clauses to "this Agreement" or "the Finance Documents" are references to this Agreement.
8.2
Counterparts
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.
8.3
Indemnity to the Agent
The parties to this Agreement confirm for the avoidance of doubt that any indemnities to the Agent given in the Original Facility Agreement (including but not limited to under clauses 20.3 (Indemnity to the Agent) and 33.10 (Lenders' indemnity to the Agent)) shall (subject to any limitations set out therein) apply to and include any cost, loss or liability incurred by the Agent under or in connection with this Agreement and the transactions contemplated herein.
9.
GOVERNING LAW
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
This Agreement has been entered into on the date stated at the beginning of this Agreement.

 
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SCHEDULE 1THE PARTIES

PART I
THE BORROWERS
Name of Borrower
Registration number (or equivalent, if any) and Jurisdiction of Incorporation
Cabot Financial (UK) Limited
3757424, England & Wales

    
PART II
THE GUARANTORS
Name of Guarantor
Registration number (or equivalent, if any) and Jurisdiction of Incorporation
Cabot Financial (Luxembourg) S.A.
B-171245 Luxembourg
Cabot Financial Limited
5714535, England & Wales
Cabot Financial Holdings Group Limited
4934534, England & Wales
Cabot Credit Management Group Limited
4071551, England & Wales
Cabot Financial Debt Recovery Services Limited
3936134, England & Wales
Cabot Financial (UK) Limited
3757424, England & Wales
Cabot Financial (Europe) Limited
3439445, England & Wales
Financial Investigations and Recoveries (Europe) Limited
3958421, England & Wales
Apex Credit Management Limited
3967099, England & Wales
Marlin Financial Intermediate II Limited
8346249, England & Wales
Marlin Financial Intermediate Limited
7196379, England & Wales
Marlin Financial Group Limited
7195881, England & Wales
Marlin Midway Limited
8255990, England & Wales

 
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Name of Guarantor
Registration number (or equivalent, if any) and Jurisdiction of Incorporation
Black Tip Capital Holdings Limited
5927496, England & Wales
ME III Limited
7255614, England & Wales
Marlin Senior Holdings Limited
8215555, England & Wales
Marlin Portfolio Holdings Limited
8215352, England & Wales
Marlin Financial Services Limited
4618038, England & Wales
Marlin Legal Services Limited
6200270, England & Wales
Marlin Capital Europe Limited
4623224, England & Wales
MCE Portfolio Limited
5892466, England & Wales
MFS Portfolio Limited
5477405, England & Wales
Marlin Europe I Limited
5948653, England & Wales
Marlin Europe II Limited
6145019, England & Wales
ME IV Limited
07256706, England & Wales


 
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PART III
THE EXISTING LENDERS
Name of Existing Lender
Commitment
2015 Effective Date Commitment
DNB Bank ASA, London Branch
£20,000,000
£45,000,000
JPMorgan Chase Bank N.A., London Branch
£5,000,000
£5,000,000
Lloyds Bank plc
£35,000,000
£45,000,000
The Royal Bank of Scotland plc
£25,000,000
£45,000,000
 
 
 



 
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PART IV
THE NEW LENDERS

Name of New Lender
Commitment
Tax status confirmation (Qualifying Lender (other than a Treaty Lender)/Treaty Lender/not a Qualifying Lender)
HMRC DT Treaty Passport scheme reference number and jurisdiction of tax residence (if applicable)
HSBC Bank plc
£45,000,000
Qualifying Lender (other than a Treaty Lender)
N/A
Shawbrook Bank Limited
£10,000,000
Qualifying Lender (other than a Treaty Lender)
N/A


 
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SCHEDULE 2    
CONDITIONS PRECEDENT TO THE EFFECTIVE DATE
1.
Obligors
(a)
A copy of the constitutional documents of each Obligor (other than the Luxembourg Guarantor) and CCML or a certificate of an authorised signatory of each Obligor (other than the Luxembourg Guarantor) and CCML certifying that the constitutional documents previously delivered to the Agent for the purposes of the Original Facility Agreement have not been amended and remain in full force and effect.
(b)
A copy of a resolution of the board of directors of each Obligor (other than the Luxembourg Guarantor) and CCML:
(i)
approving the terms of, and the transactions contemplated by, this Agreement, the Luxembourg Confirmation Agreement, the Cabot Supplemental Debenture and the Marlin Supplemental Debenture and resolving that it execute each of this Agreement, the Luxembourg Confirmation Agreement, the Cabot Supplemental Debenture and the Marlin Supplemental Debenture to which it is a party; and
(ii)
authorising a specified person or persons to execute each of this Agreement, the Luxembourg Confirmation Agreement, the Cabot Supplemental Debenture and the Marlin Supplemental Debenture to which it is a party on its behalf.
(c)
A copy of a specimen of the signature of each person authorised by the resolution referred to in paragraph (b) above.
(d)
A copy of a resolution signed by all of the holders of the issued shares in each Guarantor (other than the Luxembourg Guarantor) and, in respect of CCML, a copy of a resolution signed by the majority holders of its issued shares, approving the terms of, and the transactions contemplated by, this Agreement, the Luxembourg Confirmation Agreement, the Cabot Supplemental Debenture and the Marlin Supplemental Debenture.
(e)
A certificate of the Parent (signed by a director or authorised signatory) confirming that borrowing or guaranteeing or securing, as appropriate, the Total Commitments (as will be increased on the Effective Date) would not cause any borrowing, guarantee, security or similar limit binding on any Obligor (other than the Luxembourg Guarantor) or CCML to be exceeded.
(f)
A certificate of an authorised signatory of each Obligor (other than the Luxembourg Guarantor) and CCML certifying that each copy document relating to it specified in this Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.

 
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2.
Luxembourg documents
(a)
A copy of the consolidated articles of association (statuts coordonnés) of the Luxembourg Guarantor.
(b)
A copy of the resolutions of the board of directors of the Luxembourg Guarantor approving the entry into each of this Agreement, the Luxembourg Confirmation Agreement and the Cabot Supplemental Debenture.
(c)
An excerpt (extrait) from the Luxembourg Register of Commerce and Companies with respect to the Luxembourg Guarantor.
(d)
A certificate of non-registration of judicial decisions (certificat de non-inscription de décision judiciaire) from the Luxembourg Register of Commerce and Companies with respect to the Luxembourg Guarantor.
(e)
A certificate signed by a director of the Luxembourg Guarantor:
(i)
certifying that each copy document relating to it specified in this Schedule 2 is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the date of this Agreement; and
(ii)
confirming that guaranteeing or securing, as appropriate, the Total Commitments (as will be increased on the Effective Date) would not cause any guarantee, security or similar limit binding on the Luxembourg Guarantor to be exceeded;
(iii)
certifying the specimen of signature of each person authorised under the resolutions referred to above to execute each of this Agreement, the Luxembourg Confirmation Agreement and the Cabot Supplemental Debenture on its behalf; and
(iv)
certifying that the Luxembourg Guarantor is not subject to bankruptcy (faillite), controlled management (gestion contrôlée), suspension of payments (sursis de paiement), arrangement with creditors (concordat préventif de faillite) and judicial liquidation (liquidation judiciaire) proceedings and, to the best of its knowledge, no petition for the opening of such proceedings has been presented.
3.
Finance Documents
(a)
This Agreement executed by the members of the Group party to this Agreement.
(b)
A Luxembourg law confirmation agreement (the "Luxembourg Confirmation Agreement") in respect of:
(i)
the Luxembourg law share pledge granted by Cabot Financial Holdings Group Limited in favour of the Security Agent; and
(ii)
the Luxembourg law bank account pledge granted by the Luxembourg Guarantor in favour of the Security Agent.

 
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executed by Cabot Financial Holdings Group Limited and the Luxembourg Guarantor respectively.
(c)
A supplemental debenture supplementing the Cabot Debenture, executed by each member of the Group which is party thereto (the "Cabot Supplemental Debenture").
(d)
A supplemental debenture supplementing the Marlin Debenture, executed by each member of the Group which is party thereto (the "Marlin Supplemental Debenture").
(e)
An arrangement fee letter between the Parent and the Agent executed by the Parent.
4.
Legal Opinions
(a)
A legal opinion of Clifford Chance LLP, legal advisers to the Agent in England.
(b)
A legal opinion of Arendt & Medernach, legal advisers to the Obligors as to the capacity and due execution of the Luxembourg Guarantor under Luxembourg law; and
(c)
A legal opinion of Clifford Chance LLP, legal advisers to the Agent and the Arranger as to the enforceability of the Luxembourg Confirmation Agreement,
in each case, substantially in the form distributed to the Lenders prior to signing this Agreement.
5.
Other documents and evidence
(a)
A copy of the group structure chart (certified by a director of the Parent as at a date no earlier than the date of this Agreement) in the agreed form.
(b)
A copy of any other Authorisation or other document, opinion or assurance which the Agent (acting reasonably) considers to be necessary or desirable in connection with the entry into and performance of the transactions contemplated by this Agreement or for the validity and enforceability of this Agreement.

 
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SCHEDULE 3
RESTATED AGREEMENT


 
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DATED 20 SEPTEMBER 2012
AS AMENDED BY AN AMENDMENT LETTER DATED 25 APRIL 2013
AS AMENDED AND RESTATED BY AN AMENDMENT AND RESTATEMENT AGREEMENT DATED 28 JUNE 2013, AS AMENDED BY AN AMENDMENT AGREEMENT DATED 25 JULY 2014 AND AS AMENDED AND RESTATED BY AN AMENDMENT AND RESTATEMENT AGREEMENT DATED _5_ FEBRUARY 2015


CABOT FINANCIAL (UK) LIMITED
ARRANGED BY
DNB BANK ASA, LONDON BRANCH
HSBC BANK PLC
J.P. MORGAN LIMITED
LLOYDS BANK PLC
AND
THE ROYAL BANK OF SCOTLAND PLC
AS MANDATED LEAD ARRANGERS
WITH
J.P. MORGAN EUROPE LIMITED
ACTING AS AGENT
AND
J.P. MORGAN EUROPE LIMITED
ACTING AS SECURITY AGENT

 
SENIOR FACILITIES AGREEMENT
RELATING TO A
£195,000,000 COMMITTED REVOLVING FACILITY
 





 


CONTENTS
Clause
Page
1.
Definitions and Interpretation
1

2.
The Facility
39

3.
Purpose
46

4.
Conditions of Utilisation
47

5.
Utilisation – Loans
50

6.
Utilisation - Letters of Credit
52

7.
Letters of Credit
57

8.
Optional currencies
62

9.
Ancillary Facilities
62

10.
Repayment
69

11.
Illegality, Voluntary Prepayment and Cancellation
70

12.
Mandatory Prepayment
72

13.
Restrictions
78

14.
Interest    
79

15.
Interest Periods    
80

16.
Changes to the Calculation Of Interest
81

17.
Fees
84

18.
Tax Gross Up and Indemnities    
86

19.
Increased Costs
96

20.
Other Indemnities    
98

21.
Mitigation by the Lenders    
99

22.
Costs and Expenses
100

23.
Guarantee and Indemnity
101

24.
Representations    
105

25.
Information Undertakings
114

26.
Financial Covenants    
124

27.
General Undertakings    
128

28.
Events of Default
137

29.
Investment Grade status    
143

30.
Changes to the Lenders    
143

31.
Restriction on Debt Purchase Transactions
151

32.
Changes to the Obligors
152

33.
Role of the Agent, the Arranger, the Issuing Bank and Others
156

34.
Conduct of Business by the Finance Parties
166

                

 
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35.
Sharing among the Lenders
166

36.
Payment Mechanics
168

37.
Set-Off
172

38.
Notices
172

39.
Calculations and Certificates
175

40.
Partial Invalidity
176

41.
Remedies and Waivers
176

42.
Amendments and Waivers
176

43.
Confidentiality
183

44.
Confidentiality of Funding Rates and Reference Bank Quotations
187

45.
Counterparts
189

46.
Governing Law
189

47.
Enforcement
189

48.
Waiver of Jury Trial
190

49.
Patriot Act
190

50.
Powers of Attorney
191

Schedule 1 The Original Parties
192

Part I The Original Obligors
192

Part II The Lenders
193

Schedule 2 Conditions Precedent
195

Part I Conditions precedent to initial Utilisation
195

Part II Conditions precedent required to be delivered by an Additional Obligor
199

Part III Transaction Security Documents
200

Schedule 3 Requests and Notices
201

Part I Utilisation Request
201

Part II Utilisation Request
203

Schedule 4 Form of Transfer Certificate
205

Schedule 5 Form of Assignment Agreement
209

Schedule 6 Form of Accession Deed
213

Schedule 7 Form of Resignation Letter
216

Schedule 8 Form of Compliance Certificate
217

Schedule 9 LMA Form of Confidentiality Undertaking
219

Schedule 10 Timetables    
225

Part I Loans    
225

Part II Letters of Credit
227

Schedule 11 Letter of Credit Requirements
228

Schedule 12 Form of Letter of Credit    
230

                                        

 
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Schedule 13 Forms of Notifiable Debt Purchase Transaction Notice
234

Part I Form of Notice of Entering into Notifiable Debt Purchase Transaction
234

Part II Form of Notice on Termination of Notifiable Debt Purchase Transaction
235

Schedule 14 Restrictive Covenants
236

Part I Covenants
236

Part II Certain Definitions
260

Schedule 15 Form of Increase Confirmation
299

Schedule 16 Agreed Security Principles
303

Schedule 17 Form of Additional Commitment Increase Notice
310

Schedule 18 Excluded Bank Accounts
314

    

 
iii
 


 


THIS AGREEMENT is originally dated 20 September 2012 and made between:
(1)
CABOT FINANCIAL LIMITED, a private limited liability company incorporated under the laws of England and Wales with company registration number 5714535 and with its registered office at 1 Kings Hill Avenue, Kings Hill, West Malling, Kent, ME19 4UA (the "Parent");
(2)
THE SUBSIDIARIES of the Parent listed in Part I of Schedule 1 (The Original Parties) as original borrowers (together with the Parent, the "Original Borrowers");
(3)
THE COMPANIES listed in Part I of Schedule 1 (The Original Parties) as original guarantors (together with the Parent, the "Original Guarantors");
(4)
CABOT CREDIT MANAGEMENT LIMITED, a private limited liability company incorporated under the laws of England and Wales with company registration number 5754978 and with its registered office at 1 Kings Hill Avenue, Kings Hill, West Malling, Kent, ME19 4UA as another guarantor ("CCML");
(5)
DNB BANK ASA, LONDON BRANCH, HSBC BANK PLC, J.P. MORGAN LIMITED, LLOYDS BANK PLC and THE ROYAL BANK OF SCOTLAND PLC as mandated lead arrangers (the "Arrangers");
(6)
THE FINANCIAL INSTITUTIONS listed in Part II-C of Schedule 1 (The Original Parties) as lenders (the "2015 Effective Date Lenders");
(7)
J.P. MORGAN EUROPE LIMITED as agent of the other Finance Parties (the "Agent"); and
(8)
J.P. MORGAN EUROPE LIMITED as security trustee for the Secured Parties (the "Security Agent").
IT IS AGREED as follows:
1.
DEFINITIONS AND INTERPRETATION
1.1
Definitions
In this Agreement:
"2015 Effective Date" means the "Effective Date" as defined in the amendment and restatement agreement in relation to this Agreement dated on or about ____ February 2015 between, among others, each of the Obligors, the Lenders, the Agent and the Security Agent.
"Acceptable Bank" means:
(a)
any Arranger or Affiliate of an Arranger;
(b)
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, A- or higher by Fitch Ratings Ltd or A3 or higher by Moody's Investor

 
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Services Limited or a comparable rating from an internationally recognised credit rating agency; or
(c)
any other bank or financial institution approved by the Agent.
"Acceleration Notice" means a notice served by the Agent pursuant to and in accordance with Clause 28.19 (Acceleration).
"Accession Deed" means a document substantially in the form set out in Schedule 6 (Form of Accession Deed).
"Accounting Principles" means generally accepted accounting principles, standards and practices in England as applied in the Original Financial Statements of the Parent, and shall include IFRS.
"Accounting Reference Date" means 31 December.
"Additional Borrower" means a company which becomes an Additional Borrower in accordance with Clause 32 (Changes to the Obligors).
"Additional Commitment Increase Date" means each date on which the Total Commitments are increased pursuant to paragraph (g) of Clause 2.3 (Accordion Increase in Commitments).
"Additional Commitment Increase Notice" means an agreement substantially in the form set out in Schedule 17 (Form of Additional Commitment Increase Notice) or any other form agreed between the Parent and the Agent.
"Additional Commitment Lender" has the meaning given to that term in Clause 2.3 (Accordion Increase in Commitments).
"Additional Commitment Restrictions" means the following restrictions:
(a)
the aggregate amount of any Additional Commitments requested shall comply with the provisions of:
(i)
paragraph (d) of Clause 2.3 (Accordion Increase in Commitments); and
(ii)
paragraph (e) of Clause 2.3 (Accordion Increase in Commitments);
(b)
the last day of the availability period applicable to the Additional Commitment shall not be earlier than the last day of the Availability Period;
(c)
the rate of any margin and fees applicable to any Additional Commitment (and any related Utilisations) may not be more than 1.00 per cent. per annum higher than the maximum rate of the Margin or corresponding fees (as the case may be) applicable to the Facility from time to time; and
(d)
the Additional Commitments may not have a shorter termination date than the Termination Date.

 
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"Additional Guarantor" means a company which becomes an Additional Guarantor in accordance with Clause 32 (Changes to the Obligors).
"Additional Obligor" means an Additional Borrower or an Additional Guarantor.
"Additional Shareholder Funding" has the meaning given to that term in Clause 26.2 (Financial definitions).
"Affiliate" means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company. For the purposes of The Royal Bank of Scotland plc, "Affiliate" shall include The Royal Bank of Scotland N.V. and each of its subsidiaries or subsidiary undertakings but shall not include (i) the UK government or any member or instrumentality thereof, including Her Majesty's Treasury and UK Financial Investments Limited (or any directors, officers, employees or entities thereof) or (ii) any persons or entities controlled by or under common control with the UK government or any member or instrumentality thereof (including Her Majesty's Treasury and UK Financial Investments Limited) which are not part of The Royal Bank of Scotland Group plc and its subsidiaries or subsidiary undertakings (including The Royal Bank of Scotland N.V. and each of its subsidiaries or subsidiary undertakings).
"Agent's Spot Rate of Exchange" means the Agent's spot rate of exchange for the purchase of the relevant currency with the Base Currency in the London foreign exchange market at or about 11:00 a.m. on a particular day.
"Agreed Security Principles" means the principles set out in Schedule 16 (Agreed Security Principles).
"Alternative Reference Bank Rate" means:
(a)
the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request by the Alternative Reference Banks:
(i)
in relation to LIBOR:
(A)
(other than where paragraph (B) below applies) as the rate at which the relevant Alternative Reference Bank could borrow funds in the London interbank market in the relevant currency and for the relevant period were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for that period; or
(B)
if different, as the rate (if any and applied to the relevant Alternative Reference Bank and the relevant currency and period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator; or
(ii)
in relation to EURIBOR:

 
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(A)
(other than where paragraph (B) below applies) as the rate at which the relevant Alternative Reference Bank believes one prime bank is quoting to another prime bank for interbank term deposits in euro within the Participating Member States for the relevant period; or
(B)
if different, as the rate (if any and applied to the relevant Alternative Reference Bank and the relevant period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator.
"Alternative Reference Banks" means, in relation to LIBOR and EURIBOR, such reputable banks as may be appointed by the Agent in consultation with the Parent, in each case acting out of their principal offices in such jurisdiction as the Agent may, in consultation with the Parent, select.
"Ancillary Commencement Date" means, in relation to an Ancillary Facility, the date on which that Ancillary Facility is first made available, which date shall be a Business Day within the Availability Period.
"Ancillary Commitment" means, in relation to an Ancillary Lender and an Ancillary Facility, the maximum Base Currency Amount which that Ancillary Lender has agreed (whether or not subject to satisfaction of conditions precedent) to make available from time to time under an Ancillary Facility and which has been authorised as such under Clause 9 (Ancillary Facilities), to the extent that amount is not cancelled or reduced under this Agreement or the Ancillary Documents relating to that Ancillary Facility.
"Ancillary Document" means each document relating to or evidencing the terms of an Ancillary Facility.
"Ancillary Facility" means any ancillary facility made available by an Ancillary Lender in accordance with Clause 9 (Ancillary Facilities).
"Ancillary Lender" means each Lender (or Affiliate of a Lender) which makes available an Ancillary Facility in accordance with Clause 9 (Ancillary Facilities).
"Ancillary Outstandings" means, at any time, in relation to an Ancillary Lender and an Ancillary Facility then in force the aggregate of the following amounts in the Base Currency outstanding under that Ancillary Facility (net of any credit balances on any account of any Borrower of an Ancillary Facility with the Ancillary Lender making available that Ancillary Facility to the extent that the credit balances are freely available to be set-off by that Ancillary Lender against liabilities owed to it by that Borrower under that Ancillary Facility):
(a)
the principal amount under each overdraft facility and on-demand short term loan facility (provided that for the purpose of this definition, any amount of any outstanding utilisation under any BACS facility (or similar) made available by an Ancillary Lender shall, with the prior consent of that Ancillary Lender, be excluded (without any double counting));

 
4
 


 


(b)
the face amount of each guarantee, bond and letter of credit under that Ancillary Facility; and
(c)
the amount fairly representing the aggregate exposure (excluding interest and similar charges) of that Ancillary Lender under each other type of accommodation provided under that Ancillary Facility,
in each case as determined by such Ancillary Lender, acting reasonably in accordance with its normal banking practice and in accordance with the relevant Ancillary Document.
"Approved List" means the list of Lenders and potential Lenders held by the Agent (as the same may be amended from time to time pursuant to Clause ‎‎30.2 (Conditions of assignment or transfer)).
"Assignment Agreement" means an agreement substantially in the form set out in Schedule 5 (Form of Assignment Agreement) or any other form agreed between the relevant assignor and assignee provided that if that other form does not contain the undertaking set out in the form set out in Schedule 5 (Form of Assignment Agreement) it shall not be a Creditor/Agent Accession Undertaking as defined in, and for the purposes of, the Intercreditor Agreement.
"Audit Laws" means the EU Regulation (537/2014) on specific requirements regarding statutory audit of public-interest entities and repealing Commission Decision 2005/909/EC and the EU Directive (2014/56/EU) amending Directive 2006/43/EC on statutory audits of annual accounts and consolidated accounts and any law or regulation which implements that EU Directive (2014/56/EU).
"Auditors" means BDO LLP or any other accounting firm appointed by the Parent or the relevant member of the Group to act as its statutory auditors.
"Authorisation" means an authorisation, consent, approval, resolution, 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 prior to the Termination Date.
"Available Commitment" means, subject to Clause 2.4 (Available Commitments), a Lender's Commitment minus (subject to Clause 9.8 (Affiliates of Lenders as Ancillary Lenders)):
(a)
the amount of its participation in any outstanding Utilisations under that Facility and the amount of the aggregate of its Ancillary Commitments; and
(b)
in relation to any proposed Utilisation, the amount of its participation in any other Utilisations that are due to be made under on or before the proposed Utilisation Date and the amount of its Ancillary Commitment in relation to any new Ancillary Facility that is due to be made available on or before the proposed Utilisation Date.

 
5
 


 


For the purposes of calculating a Lender's Available Commitment in relation to any proposed Utilisation, the following amounts shall not be deducted from a Lender's Commitment under that Facility:
(i)
that Lender's participation in any Utilisations that are due to be repaid or prepaid on or before the proposed Utilisation Date; and
(ii)
that Lender's (or its Affiliate's) Ancillary Commitments to the extent that they are due to be reduced or cancelled on or before the proposed Utilisation Date.
"Available Facility" means the aggregate for the time being of each Lender's Available Commitment.
"Base Currency" means Sterling.
"Base Currency Amount" means:
(a)
in relation to a Utilisation, the amount specified in the Utilisation Request delivered by a Borrower for that Utilisation (or, 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 Agent receives the Utilisation Request in accordance with the terms of this Agreement) and, in the case of a Letter of Credit, as adjusted under Clause 6.8 (Revaluation of Letters of Credit) at six-monthly intervals; and
(b)
in relation to an Ancillary Commitment, the amount specified as such in the notice delivered to the Agent by the Parent pursuant to Clause 9.2 (Availability) (or, if the amount specified 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 Ancillary Commencement Date for that Ancillary Facility or, if later, the date the Agent receives the notice of the Ancillary Commitment in accordance with the terms of this Agreement),
as adjusted to reflect any repayment, prepayment, consolidation or division of a Utilisation, or (as the case may be) cancellation or reduction of an Ancillary Facility.
"Base Reference Bank Rate" means:
(a)
the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request by the Base Reference Banks:
(i)
in relation to LIBOR:
(A)
(other than where paragraph (B) below applies) as the rate at which the relevant Base Reference Bank could borrow funds in the London interbank market in the relevant currency and for the relevant period were it to do so by asking for and then accepting

 
6
 


 


interbank offers for deposits in reasonable market size in that currency and for that period; or
(B)
if different, as the rate (if any and applied to the relevant Base Reference Bank and the relevant currency and period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator; or
(ii)
in relation to EURIBOR:
(A)
(other than where paragraph (B) below applies) as the rate at which the relevant Base Reference Bank believes one prime bank is quoting to another prime bank for interbank term deposits in euro within the Participating Member States for the relevant period; or
(B)
if different, as the rate (if any and applied to the relevant Base Reference Bank and the relevant period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator.
"Base Reference Banks" means, in relation to LIBOR and EURIBOR, the principal London offices of Lloyds Bank plc and such other banks as may be appointed by the Agent in consultation with the Parent.
"Borrower" means an Original Borrower or an Additional Borrower unless it has ceased to be a Borrower in accordance with Clause 32 (Changes to the Obligors) and, in respect of an Ancillary Facility only, any Affiliate of a Borrower that becomes a borrower of that Ancillary Facility with the approval of the relevant Lender pursuant to the provisions of Clause 9.9 (Affiliates of Borrowers).
"Break Costs" means the amount (if any) by which:
(a)
the interest (excluding the Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
exceeds:
(b)
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.

 
7
 


 


"Budget" means:
(a)
in relation to the period beginning on the Closing Date and ending on 31 December 2012, the budget to be delivered by the Parent to the Agent pursuant to Clause 4.1 (Initial conditions precedent); and
(b)
in relation to any other period, any budget delivered by the Parent to the Agent in respect of that period pursuant to Clause 25.4 (Budget).
"Business Day" means a day (other than a Saturday or Sunday) on which banks are open for general business in London and:
(a)
(in relation to any date for payment or purchase of a currency other than euro) the principal financial centre of the country of that currency; or
(b)
(in relation to any date for payment or purchase of euro) any TARGET Day.
"Cash Equivalent Investments" has the meaning given to "Cash Equivalents" in Schedule 14 (Restrictive Covenants).
"Centre of Main Interests" means the "centre of main interests" as such term is used in Article 3(1) of the Council Regulation (EC) no. 1346/2000 on insolvency proceedings.
"Change in Law" means the occurrence, after the date of this Agreement (or with respect to any Lender, if later, the date on which such Lender becomes a Lender), of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any governmental authority, or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any governmental authority; provided however notwithstanding anything herein to the contrary, the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder issued in connection therewith or in implementation thereof shall be deemed to be a "Change in Law", regardless of the date enacted, adopted, issued or implemented.
"Change of Control" means:
(a)
prior to an Initial Public Offering, the Investors cease to control or own, legally and beneficially, directly or indirectly, more than 50% of the issued share capital and/or voting rights attaching to the issued shares of the Parent and/or the ability to determine the composition of the majority of the board of directors or equivalent body of the Parent; or
(b)
following an Initial Public Offering, either:
(i)
the Investors cease to control or own, legally and beneficially, directly or indirectly, more than 30% of the issued share capital and/or voting rights of the Parent; or

 
8
 


 


(ii)
a person or group of persons acting in concert acquires, directly or indirectly, more issued shares and/or voting rights in the Parent than are held (directly or indirectly) by the Investors; or
(c)
the Parent ceases to be a direct wholly-owned subsidiary of Cabot Credit Management Limited; or
(d)
a "Change of Control Triggering Event" as defined in the Note Indenture occurs.
For the purposes of this definition "acting in concert" means, a group of persons who, pursuant to an agreement or understanding (whether formal or informal), actively co-operate, through the acquisition directly or indirectly of shares in the Parent by any of them, either directly or indirectly, to obtain or consolidate control of the Parent.
"Charged Property" means all of the assets of the Obligors which from time to time are, or are expressed to be, the subject of the Transaction Security.
"Closing Date" means the date on which the Notes are issued and the Agent notifies the Parent and the Lenders as required under Clause 4.1 (Initial conditions precedent).
"Closing Date Dividend" means the upstream dividend made by the Borrower ultimately received by Cabot Financial Limited as described in steps 11 to 15 of the Deloittes' steps paper dated 19 September 2012.
"Commitment" means:
(a)
in relation to any Lender on the 2015 Effective Date, the amount set opposite its name under the heading "Commitment" in Part II-C of Schedule 1 (The Original Parties) and the amount of any other Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase), Clause 2.3 (Accordion Increase in Commitments); and
(b)
in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase) or Clause 2.3 (Accordion Increase in Commitments),
to the extent not cancelled, reduced or transferred by it under this Agreement.
"Competitor" means any person whose business (or the business of any of its Affiliates, related trusts, partnerships, or funds, excluding the business of any of its Affiliates, related trusts, partnerships, and funds in circumstances where (i) the relevant entity's primary business does not concern distressed or non-performing consumer debts and (ii) the relevant entity is independently managed or controlled from such person) is in competition with any aspect of the general business carried on by the Group as a whole in the distressed or non-performing consumer debt purchase and distressed or non-performing consumer debt collection market (together with each other person acting on behalf, on the instructions, or for the account of, any such person), in each case save that, in the case of any banking institution only, any person with a division or business line, Affiliate, related trust, partnership or fund that is in competition with the Group and

 
9
 


 


that division or business line, Affiliate, related trust, partnership or fund is not a material competitor of the Group shall not be a "Competitor".
"Compliance Certificate" means a certificate substantially in the form set out in Schedule 8 (Form of Compliance Certificate).
"Confidential Information" means all information relating to the Parent, any Obligor, the Group, the Finance Documents or a Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or a Facility from either:
(a)
any member of the Group 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 information that:
(i)
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 43 (Confidentiality);
(ii)
is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or
(iii)
is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (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
(iv)
any Funding Rate or Reference Bank Quotation.
"Confidentiality Undertaking" means a confidentiality undertaking substantially in a recommended form of the LMA as set out in Schedule 9 (LMA Form of Confidentiality Undertaking) or in any other form agreed between the Parent and the Agent, in each case capable of being relied upon by (and not capable of being materially amended without the consent of) the Parent.
"Consolidated EBITDA" has the meaning given to that term in Schedule 14 (Restrictive Covenants).
"Constitutional Documents" means the constitutional documents of the Parent.
"Consumer Debt or Account" means any debt or account where the debtor is (i) an individual, or (ii) any other person in circumstances where an individual provides any surety, guarantee, credit support, Security, or other financial assistance which represents

 
10
 


 


the principal credit support for the relevant debt or account in respect of that debt or account.
"CTA" means the Corporation Tax Act 2009.
"Debt Purchase Transaction" means, in relation to a person, a transaction where such person:
(a)
purchases by way of assignment or transfer;
(b)
enters into any sub-participation in respect of; or
(c)
enters into any other agreement or arrangement having an economic effect substantially similar to a sub-participation in respect of,
any Commitment or amount outstanding under this Agreement.
"Default" means an Event of Default or any event or circumstance specified in Clause 28 (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 the foregoing) be an Event of Default, provided that any such event or circumstance which requires any determination as to materiality before it may become an Event of Default shall not be a Default until such determination is made.
"Defaulting Lender" means any Lender (other than a Lender which is a Sponsor Affiliate):
(a)
which has failed to make its participation in a Loan available or has notified the Agent that it will not make its participation in a Loan available by the Utilisation Date of that Loan in accordance with Clause 5.4 (Lenders' participation) or has failed to provide cash collateral (or has notified the Issuing Bank that it will not provide cash collateral) in accordance with Clause 7.4 (Cash collateral by Non-Acceptable L/C Lender);
(b)
which has otherwise rescinded or repudiated a Finance Document; or
(c)
with respect to which an Insolvency Event has occurred and is continuing,
unless, in the case of paragraph (a) above:
(i)
its failure to pay is caused by:
(A)
administrative or technical error; or
(B)
a Disruption Event; and
payment is made within three (3) Business Days of its due date; or
(ii)
the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.

 
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"Delegate" means any delegate, agent, attorney or co-trustee appointed by the Security Agent.
"Designated Gross Amount" has the meaning given to that term in Clause 9.2 (Availability).
"Designated Net Amount" has the meaning given to that term in Clause 9.2 (Availability).
"Disruption Event" means either or both of:
(a)
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facilities (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or
(b)
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:
(i)
from performing its payment obligations under the Finance Documents; or
(ii)
from communicating with other Parties in accordance with the terms of the Finance Documents,
and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.
"Environment" means humans, animals, plants and all other living organisms including the ecological systems of which they form part and the following media:
(a)
air (including, without limitation, air within natural or man-made structures, whether above or below ground);
(b)
water (including, without limitation, territorial, coastal and inland waters, water under or within land and water in drains and sewers); and
(c)
land (including, without limitation, land under water).
"Environmental Claim" means any claim, proceeding, formal notice or investigation by any person in respect of any Environmental Law.
"Environmental Law" means any applicable law or regulation which relates to:
(a)
the pollution or protection of the Environment;
(b)
the conditions of the workplace; or

 
12
 


 


(c)
the generation, handling, storage, use, release or spillage of any substance which, alone or in combination with any other, is capable of causing harm to the Environment, including, without limitation, any waste.
"Environmental Permits" means any permit and other Authorisation and the filing of any notification, report or assessment required under any Environmental Law for the operation of the business of any member of the Restricted Group conducted on or from the properties owned or used by any member of the Restricted Group.
"ERC" has the meaning given to that term in Clause 26.2 (Financial definitions).
"ERC Model" has the meaning given to that term in Clause 26.2 (Financial definitions).
"ERC Model Output" means the spread sheet prepared by the Parent showing ERC broken down into the monthly estimated remaining collections over 84 months of each individual component debt portfolio, in the agreed form.
"EUR" or "euro" means the single currency unit of the Participating Member States.
"EURIBOR" means, in relation to any Loan in euro:
(a)
the applicable Screen Rate as of the Specified Time for euro and for a period equal in length to the Interest Period of that Loan; or
(b)
as otherwise determined pursuant to Clause 16.1 (Unavailability of Screen Rate),
and if, in either case, that rate is less than zero, EURIBOR will be deemed to be zero.
"Event of Default" means any event or circumstance specified as such in Clause 28 (Events of Default).
"Excluded Bank Accounts" means:
(a)
each bank account the credit balance of which relates to monies held on trust for third parties;
(b)
the bank accounts specified in Schedule 18 (Excluded Bank Accounts); and
(c)
any other bank account approved by the Agent from time to time.
"Existing Cap" means each interest rate cap hedging agreement entered into before the date of this Agreement in respect of interest rate exposures relating to the Existing Facility.
"Existing Facilities" means the facilities documented by the Existing Facilities Agreement and any ancillary facility granted in connection therewith.
"Existing Facilities Agreement" the facility agreement originally dated 1 March 2005 (as amended and restated from time to time) made between, among others, Cabot Financial (UK) Limited as borrower, The Royal Bank of Scotland plc as arranger, agent

 
13
 


 


and security agent and Citibank, N.A., London Branch, DNB Bank ASA, The Royal Bank of Scotland plc and WestLB AG as original lenders.
"Expiry Date" means, for a Letter of Credit, the last day of its Term.
"Facility" means the revolving credit facility made available under this Agreement as described in Clause 2.1 (The Facility).
"Facility Office" means:
(a)
in respect of a Lender or the Issuing Bank, the office or offices notified by that Lender or the Issuing Bank to the Agent in writing on or before the date it becomes a Lender or the Issuing Bank (or, following that date, by not less than five (5) Business Days written notice) as the office or offices through which it will perform its obligations under this Agreement; or
(b)
in respect of any other Finance Party, the office in the jurisdiction in which it is resident for tax purposes.
"FATCA" means:
(a)
sections 1471 to 1474 of the US Internal Revenue Code of 1986 (the "Code") or any associated regulations or other official guidance;
(b)
any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of paragraph (a) above; or
(c)
any agreement pursuant to the implementation of paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
"FATCA Application Date" means:
(a)
in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 January 2014;
(b)
in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the Code (which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources within the US), 1 January 2015; or
(c)
in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2017,
or, in each case, such other date from which such payment may become subject to a deduction or withholding required by FATCA as a result of any change in FATCA after the date of this Agreement.

 
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"FATCA Exempt Party" means a Party that is entitled to receive payments free from any FATCA Deduction.
"FATCA Deduction" means a deduction or withholding from a payment under a Finance Document required by FATCA.
"Fee Letter" means:
(a)
any letter or letters dated on or about the date of this Agreement between the Parent and the Agent or the Parent and the Arrangers setting out any of the fees referred to in Clause 17 (Fees); and
(b)
any agreement setting out fees payable to a Finance Party referred to in Clause 2.2 (Increase), Clause 2.3 (Accordion Increase in Commitments), Clause 17.4 (Fees payable in respect of Letters of Credit) or Clause 17.5 (Interest, commission and fees on Ancillary Facilities) of this Agreement or under any other Finance Document.
"Finance Document" means this Agreement, any Accession Deed, any Ancillary Document, any Compliance Certificate, any Fee Letter, any Hedging Agreement, the Intercreditor Agreement, any Resignation Letter, any Transaction Security Document, any Utilisation Request, any Transfer Certificate, any Assignment Agreement, any Increase Confirmation and any other document designated as a "Finance Document" by the Agent and the Parent provided that where the term "Finance Document" is used in, and construed for the purposes of, this Agreement or the Intercreditor Agreement, a Hedging Agreement shall be a Finance Document only for the purposes of:
(a)
the definition of "Material Adverse Effect";
(b)
the definition of "Transaction Document";
(c)
the definition of "Transaction Security Document";
(d)
paragraph (a)(iv) of Clause 1.2 (Construction); and
(e)
Clause 28.1 (Non-payment), Clause 28.10 (Unlawfulness and invalidity), Clause 28.11 (Intercreditor Agreement), Clause 28.15 (Repudiation and rescission of agreements) and sub-paragraph (b) of Clause 28.17 (Material adverse change).
"Finance Party" means the Agent, an Arranger, the Security Agent, a Lender, a Hedge Counterparty, the Issuing Bank or any Ancillary Lender provided that where the term "Finance Party" is used in, and construed for the purposes of, this Agreement or the Intercreditor Agreement, a Hedge Counterparty shall be a Finance Party only for the purposes of:
(a)
the definition of "Secured Parties";
(b)
paragraph (a)(i) of Clause 1.2 (Construction);

 
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(c)
paragraph (b) of Clause 28.17 (Material adverse change), paragraph (c) of Clause 24.3 (Non-conflict with other obligations) or Clause 24.18 (Good title to assets) of the definition of "Material Adverse Effect";
(d)
Clause 34 (Conduct of business by the Finance Parties); and
(e)
Clause 28.1 (Non-payment), Clause 28.10 (Unlawfulness and invalidity), Clause 28.11 (Intercreditor Agreement) and Clause 28.15 (Repudiation and rescission of agreements).
"Financial Indebtedness" has the meaning given to "Indebtedness" in Schedule 14 (Restrictive Covenants).
"Financial Quarter" has the meaning given to that term in Clause 26.2 (Financial definitions).
"Financial Year" has the meaning given to that term in Clause 26.2 (Financial definitions).
"Funding Rate" means any individual rate notified by a Lender to the Agent pursuant to paragraph (a)(ii) of Clause 16.4 (Cost of funds).
"Funds Flow Statement" means a funds flow statement in the agreed form.
"GBP", "Sterling" or "£" means the lawful currency for the time being of the United Kingdom.
"Group" means the Parent and each of its Subsidiaries for the time being.
"Group Structure Chart" means the group structure chart in the agreed form.
"Guarantor" means an Original Guarantor or an Additional Guarantor,
"Hedge Counterparty" means any person which is or has become a Party to the Intercreditor Agreement as a Hedge Counterparty in accordance with the provisions of the Intercreditor Agreement.
"Hedging Agreement" means any master agreement, confirmation, schedule or other agreement entered into or to be entered into by a member of the Restricted Group and a Hedge Counterparty for any purpose permitted under Clause 27.17 (Treasury Transactions).
"HMRC" means HM Revenue & Customs.
"Holdco" means the Parent, Cabot Financial Holdings Group Limited, the Luxembourg Guarantor, Cabot Credit Management Group Limited and Cabot Financial Debt Recovery Services Limited.
"Holding Company" means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary.

 
16
 


 


"IFRS" means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.
"Investment Grade Status" shall have the meaning set out in the Note Indenture as it applies to the Notes and for the purposes of Clause 29 (Investment Grade Status) shall have a corresponding meaning in respect of any other Permitted Financial Indebtedness.
"Impaired Agent" means the 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)
the Agent otherwise rescinds or repudiates a Finance Document;
(c)
(if the Agent is also a Lender) it is a Defaulting Lender under paragraphs (a) or (b) of the definition of "Defaulting Lender"; or
(d)
an Insolvency Event has occurred and is continuing with respect to the Agent,
unless, in the case of paragraph (a) above:
(i)
its failure to pay is caused by:
(A)
administrative or technical error; or
(B)
a Disruption Event; and
payment is made within three (3) Business Days of its due date; or
(ii)
the Agent is disputing in good faith whether it is contractually obliged to make the payment in question.
"Increase Confirmation" means a confirmation substantially in the form set out in Schedule 15 (Form of increase confirmation).
"Increase Lender" has the meaning given to that term in Clause 2.2 (Increase).
"Initial ERC" means the ERC forecast dated 30 June 2012.
"Initial Public Offering" means an initial public offering on any recognised investment exchange of the shares of the Parent or any Holding Company of the Parent but excluding the Investors.
"Insolvency Event" in relation to a Finance Party means that the Finance Party:
(a)
is dissolved (other than pursuant to a consolidation, amalgamation or merger);
(b)
becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;

 
17
 


 


(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 any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a 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 by it or such regulator, supervisor or similar official;
(e)
has instituted against it a proceeding seeking a 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 instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and:
(i)
results in a judgment of insolvency or bankruptcy or the 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 the institution or presentation thereof;
(f)
has exercised in respect of it one or more of the stabilisation powers pursuant to Part 1 of the Banking Act 2009 and/or has instituted against it a bank insolvency proceeding pursuant to Part 2 of the Banking Act 2009 or a bank administration proceeding pursuant to Part 3 of the Banking Act 2009;
(g)
has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);
(h)
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;
(i)
has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;
(j)
causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (i) above, including a Luxembourg Insolvency Event; or
(k)
takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.

 
18
 


 


"Intellectual Property" means:
(a)
any patents, trademarks, service marks, designs, business names, copyrights, database rights, design rights, domain names, moral rights, inventions, confidential information, knowhow and other intellectual property rights and interests (which may now or in the future subsist), whether registered or unregistered; and
(b)
the benefit of all applications and rights to use such assets of each member of the Restricted Group (which may now or in the future subsist).
"Intercreditor Agreement" means the intercreditor agreement dated on or about the Closing Date and made between, among others, the Parent, the Debtors (as defined in the Intercreditor Agreement), the Security Agent, the Agent, the Lenders (as RCF Lenders), the Arranger (as Arranger), the Intra-Group Lenders, the Structural Creditors and the Note Trustee (each as defined in the Intercreditor Agreement).
"Interest Period" means, in relation to a Loan, each period determined in accordance with Clause 15 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 14.3 (Default interest).
"Interpolated Screen Rate" means, in relation to any Loan, the rate (rounded to the same number of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between:
(a)
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and
(b)
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,
each as of the Specified Time for the currency of that Loan.
"Intra-Group Loans" means a loan by the Parent to the Borrower and any other loans made by one member of the Restricted Group to another member of the Restricted Group.
"Investors" means Encore Capital Group, Inc. and any fund managed and/or advised by it, J.C. Flowers & Co. LLC and any fund managed and/or advised by it and, in each case, any of their respective Affiliates.
"Issuing Bank" means each Lender which has notified the Agent that it has agreed to the Parent's request to be an Issuing Bank pursuant to the terms of this Agreement (and if more than one Lender has so agreed, such Lenders shall be referred to, whether acting individually or together, as the "Issuing Bank") provided that, in respect of a Letter of Credit issued or to be issued pursuant to the terms of this Agreement, the "Issuing Bank" shall be the Issuing Bank which has issued or agreed to issue that Letter of Credit.
"ITA" means the Income Tax Act 2007.

 
19
 


 


"Joint Venture" means any joint venture entity, whether a company, unincorporated firm, undertaking, association, joint venture or partnership or any other entity in which the interests of all members of the Restricted Group (taken together) are not more than 50%.
"L/C Proportion" means in respect of any Letter of Credit, the proportion (expressed as a percentage) borne by that Lender's Available Commitment to the Available Facility immediately prior to the issue of that Letter of Credit, adjusted to reflect any assignment or transfer under this Agreement to or by that Lender.
"Legal Opinion" means any legal opinion delivered to the Agent under Clause 4.1 (Initial conditions precedent) or Clause 32 (Changes to the Obligors).
"Legal Reservations" means:
(a)
the principle that certain remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors;
(b)
the time barring of claims under any applicable limitation law (including the Limitation Acts), the possibility that an undertaking to assume liability for or indemnify a person against non-payment of stamp duty may be void and defences of acquiescence, set-off or counterclaim;
(c)
the principle that in certain circumstances Security granted by way of fixed charge may be recharacterised as a floating charge or that Security purported to be constituted as an assignment may be recharacterised as a charge;
(d)
the principle that additional interest imposed pursuant to any relevant agreement may be held to be unenforceable on the grounds that it is a penalty and thus void;
(e)
the principle that an English court may not give effect to an indemnity for legal costs incurred by an unsuccessful litigant;
(f)
the principle that the creation or purported creation of Security over any contract or agreement which is subject to a prohibition on transfer, assignment or charging may be void, ineffective or invalid and may give rise to a breach of the contract or agreement over which Security has purportedly been created;
(g)
similar principles, rights and defences under the laws of any Relevant Jurisdiction; and
(h)
any other matters which are set out as qualifications or reservations as to matters of law of general application in the Legal Opinions.
"Lender" means:
(a)
any Original Lender; and

 
20
 


 


(b)
any bank, financial institution, trust, fund or other entity which has become a Party as a Lender in accordance with Clause 2.2 (Increase), Clause 2.3 (Accordion Increase in Commitments) or Clause 30 (Changes to the Lenders),
which in each case has not ceased to be a Lender in accordance with the terms of this Agreement.
"Letter of Credit" means:
(a)
a letter of credit or guarantee in favour of third parties including counter guarantees for guarantees to such third parties and which:
(i)
complies with the Letter of Credit Requirements;
(ii)
is in substantially the form set out in Schedule 12 (Form of Letter of Credit); or
(iii)
is in any other form requested by the Parent and agreed by the Majority Lenders under the relevant Facility and the Issuing Bank; or
(b)
any guarantee, indemnity or other instrument in a form requested by a Borrower (or the Parent on its behalf) and agreed by the Majority Lenders under the relevant Facility and the Issuing Bank.
"Letter of Credit Requirements" means the requirements as to the form of a Letter of Credit as set out in Schedule 11 (Letter of Credit Requirements).
"LIBOR" means, in relation to any Loan:
(a)
the applicable Screen Rate as of the Specified Time for the currency of that Loan and for a period equal in length to the Interest Period of that Loan; or
(b)
as otherwise determined pursuant to Clause 16.1 (Unavailability of Screen Rate),
and if, in either case, that rate is less than zero, LIBOR shall be deemed to be zero.
"Limitation Acts" means the Limitation Act 1980 and the Foreign Limitation Periods Act 1984.
"LMA" means the Loan Market Association.
"Loan" means a loan made or to be made under the Facility or the principal amount outstanding for the time being of that loan.
"LTV Ratios" means the LTV Ratio and the SSRCF LTV Ratio.
"LTV Ratio" has the meaning given to it in Clause 26.2 (Financial definitions).
"Luxembourg Guarantor" means Cabot Financial (Luxembourg) S.A., a société anonyme incorporated under the laws of the Grand Duchy of Luxembourg, with registered office at 6, rue Gabriel Lippmann, L-5365 Munsbach, Grand Duchy of

 
21
 


 


Luxembourg and registered with the Luxembourg Register of Commerce and Companies under the number B‑171245.
"Luxembourg Share Pledge Agreement" means the agreement pursuant to which a Luxembourg law share pledge is granted by Cabot Financial Holdings Group Limited in favour of the Security Agent over the shares in the Luxembourg Guarantor.
"Majority Lenders" means a Lender or Lenders whose Commitments aggregate 75 per cent. or more of the Total Commitments (or if the Total Commitments have been reduced to zero, aggregated 75 per cent. or more of the Total Commitments immediately prior to that reduction).
"Mandatory Prepayment Account" means an interest-bearing account:
(a)
held, or to be held, by a Borrower with the Agent or the Security Agent (or Affiliate of the Agent or the Security Agent);
(b)
identified in a letter between the Parent and the Agent as a Mandatory Prepayment Account;
(c)
subject to Security in favour of the Security Agent which Security is in form and substance satisfactory to the Agent and Security Agent (each acting reasonably); and
(d)
from which no withdrawals may be made by any members of the Restricted Group except as contemplated by this Agreement,
as the same may be redesignated, substituted or replaced from time to time.
"Margin" means 3.50 per cent. per annum.
"Material Adverse Effect" means a material adverse effect on:
(a)
the business, operations, assets or financial condition of the Restricted Group (taken as a whole); or
(b)
the ability of the Obligors (taken as a whole) to perform their payment obligations under the Finance Documents; or
(c)
the legality, validity, enforceability or ranking of any Security granted or purported to be granted pursuant to any of the Finance Documents, in any such case, in a manner or to an extent which is materially adverse to the interests of the Lenders under the Finance Documents and, if capable of remedy is not remedied within 15 Business Days of the earlier of:
(i)
the Parent becoming aware of the issue; or
(ii)
the giving of notice of the issue by the Agent,
provided that such period shall run concurrently with any applicable grace period contained in Clause ‏28 (Events of Default).

 
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"Material Company" means, at any time:
(a)
an Obligor; or
(b)
a wholly-owned member of the Restricted Group that is the Holding Company of an Obligor; or
(c)
a member of the Restricted Group which:
(i)
has earnings before interest, tax, depreciation and amortisation calculated on the same basis as Consolidated EBITDA (but on an unconsolidated basis and excluding intra-Restricted Group items and investments in Restricted Subsidiaries of any member of the Restricted Group) representing more than five (5) per cent. of Consolidated EBITDA of the Restricted Group calculated on a consolidated basis; or
(ii)
has gross assets (on an unconsolidated basis excluding intra-Restricted Group items, goodwill and investments in Restricted Subsidiaries of any member of the Restricted Group) representing five (5) per cent. or more of the gross assets of the Restricted Group calculated on a consolidated basis (excluding goodwill).
Compliance with the conditions set out in paragraph (c) above shall be determined by reference to:
(i)
the most recent Annual Financial Statements of the Group (adjusted in accordance with Clause 25.8 (Unrestricted Subsidiaries)), supplied under paragraph (a) of Clause 25.1 (Financial statements) and the Compliance Certificate relating thereto;
(ii)
the latest (if applicable) consolidated financial statements of the Subsidiary (audited to the extent required by law). However, if a Subsidiary has been acquired since the date as at which the latest Annual Financial Statements of the Group were prepared, the Annual Financial Statements shall be deemed to be adjusted in order to take into account the acquisition of that Subsidiary (that adjustment being certified by two directors of the Parent as representing an accurate reflection of the revised Consolidated EBITDA) or gross assets of the Restricted Group).
A report by the Auditors of the Parent that a Subsidiary is or is not a Material Company shall, in the absence of manifest error, be conclusive and binding on all Parties.
"Material Event of Default" means any event or circumstance constituting:
(a)
an Event of Default under Clause 28.4 (Other obligations) to the extent that such Event of Default relates to a failure to comply that is material other than in the case of Clause 27.21 (Note Purchase Condition) where materiality will not be applied to such test; and
(b)
an Event of Default under any Clause other than Clause 28.4 (Other obligations).

 
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"Member State" means the territory of each Member State of the Community as defined in Article 5 and 6 of the Council Directive 2006/112/EC on the common system of value added tax.
"Month" means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:
(a)
(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
(b)
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and
(c)
if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.
The above rules will only apply to the last Month of any period.
"New Shareholder Loan" means each shareholder loan made directly or indirectly to the Parent after the Closing Date which is subordinated as Structural Liabilities pursuant to the Intercreditor Agreement or otherwise on comparable subordinated terms acceptable to the Majority Lenders.
"Non-Acceptable L/C Lender" means a Lender which:
(a)
is not an Acceptable Bank within the meaning of paragraph (c) of the definition of "Acceptable Bank" (other than a Lender which each Issuing Bank has agreed is acceptable to it notwithstanding that fact);
(b)
is a Defaulting Lender or an Insolvency Event has occurred in respect of a holding company of such Lender;
(c)
is determined or declared as such by the Issuing Bank from time to time; or
(d)
has failed to make (or has notified the Agent that it will not make) a payment to be made by it under Clause 7.3 (Indemnities) or Clause 33.10 (Lenders' indemnity to the Agent) or any other payment to be made by it under the Finance Documents to or for the account of any other Finance Party in its capacity as Lender by the due date for payment unless the failure to pay falls within the description of any of those items set out at paragraphs (i) and (ii) of the definition of Defaulting Lender.
"Non-Consenting Lender" has the meaning given to that term in Clause 42.4 (Replacement of Lender).

 
24
 


 


"Non-Consumer Debt or Accounts" means any debt or account that is not a Consumer Debt or Account.
"Non-UK-and-Ireland Originated Account" means a Portfolio Account originally issued or extended to a person outside the United Kingdom and the Republic of Ireland unless such person was resident in the United Kingdom or the Republic of Ireland at such time.
"Non-UK Originated Account" means a Portfolio Account originally issued or extended to a person outside the United Kingdom unless such person was resident in the United Kingdom at such time.
"Note Documents" means the Senior Note Documents (as such term is defined in the Intercreditor Agreement).
"Note Indenture" the senior secured note indenture dated on or about the date hereof and between, among others, the Parent and the Note Trustee, as amended from time to time.
"Note Trustee" means Citibank, N.A., London Branch, or any successor trustee appointed in accordance with the Note Indenture.
"Notes" means the Senior Notes (as such term is defined in the Intercreditor Agreement).
"Notifiable Debt Purchase Transaction" has the meaning given to that term in paragraph (b) of Clause 31.2 (Disenfranchisement on Debt Purchase Transactions entered into by Sponsor Affiliates).
"Obligor" means a Borrower or a Guarantor.
"Obligors' Agent" means the Parent or such other person, appointed to act on behalf of each Obligor in relation to the Finance Documents pursuant to Clause 2.6 (Obligors' Agent).
"Offering Memorandum" means the offering memorandum for the Notes.
"Optional Currency" means a currency (other than the Base Currency) which complies with the conditions set out in Clause 4.3 (Conditions relating to Optional Currencies).
"Original Financial Statements" means:
(a)
the audited financial statements of the Group for the fourteen months ending 31 December 2011;
(b)
in relation to each Original Obligor (other than the Luxembourg Guarantor) its audited financial statements for its Financial Year ended 31 December 2011; and
(c)
in relation to any other Obligor, its audited (to the extent required by law to be audited) financial statements (to the extent required by law to be produced) delivered to the Agent as required by Clause 32 (Changes to the Obligors).

 
25
 


 


"Original Obligor" means an Original Borrower or an Original Guarantor.
"Participating Member State" means any member state of the European Union that adopts or has adopted 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.
"Perfection Requirements" means the making or procuring of appropriate registrations, filings, endorsements, stampings, intimation in accordance with local laws, notations in stock registries, notarisations, legalisation and/or notifications of the Transaction Security Documents and/or the Transaction Security created thereunder.
"Permitted Acquisition" means an acquisition (not being an acquisition by the Parent):
(a)
of shares or other ownership interests in a company representing at least 50.1 per cent. of the issued share capital or other ownership interests of such company or of a business or undertaking carried on as a going concern (each a "Business Acquisition"); or
(b)
an acquisition of Portfolio Accounts for consideration in cash,
but only if:
(i)
in relation to a Business Acquisition, no Event of Default has occurred and is continuing at the time the relevant member of the Restricted Group contractually commits to the relevant acquisition or would result therefrom;
(ii)
in relation to an acquisition of Portfolio Accounts, no Material Event of Default has occurred and is continuing at the time the relevant member of the Restricted Group contractually commits to the relevant acquisition or would result therefrom;
(iii)
in relation to a Business Acquisition, the acquired company, business, or undertaking is engaged in a business substantially similar to or complementary to that carried on by the Restricted Group in the debt purchase and debt collection market; and
(iv)
in relation to an acquisition of a Portfolio Account:
(A)
if the aggregate purchase value of Portfolio Accounts acquired by the Restricted Group since the most recent Quarter Date exceeds or will as a result of such acquisition of Portfolio Accounts exceed an amount equal to 30 per cent. of the amount budgeted for acquisitions of Portfolio Accounts in the Budget for the relevant Financial Year, the Parent has delivered a Compliance Certificate (amended to set out calculations in respect of the LTV Ratios and the acquired Portfolio Accounts only) signed by two directors showing in reasonable detail calculations demonstrating that it is

 
26
 


 


in compliance with the LTV Ratios (calculated by reference to the last day of the most recently ended calendar Month); and
(B)
in the case of a Portfolio Account constituting either (i) a Non-Consumer Debt or Account, or (ii) a Non-UK Originated Account, having regard to the circumstances applying at the time the relevant member of the Restricted Group contractually commits to the relevant acquisition, the relevant acquisition would not result in a failure to comply with the definition of "Portfolio Account";
(v)
in relation to a Business Acquisition of less than 100 per cent. but more than 50.1 per cent. of the issued share capital or other ownership interest interests of a company which following the acquisition would constitute a Material Company, subject to such company becoming an Obligor and granting Security (on substantially the same or equivalent terms to the Transaction Security granted as a condition precedent to initial utilisation of the Facility and subject to the Agreed Security Principles) over all its assets in favour of the Secured Parties as soon as practicable and in any event within:
(A)
in the case of a Business Acquisition in England and Wales, 60 days; or
(B)
in the case of a Business Acquisition in any other jurisdiction, 90 days,
of consummation of the relevant acquisition;
(vi)
in relation to a Business Acquisition, the Parent has delivered a Compliance Certificate (amended to set out calculations in respect of the LTV Ratios and the Portfolio Accounts only) signed by two directors showing in reasonable detail calculations demonstrating:
(A)
that it will remain in compliance with the LTV Ratios immediately following completion of the relevant acquisition (calculated by reference to the last day of the most recently ended calendar Month and on a pro forma basis for the proposed Business Acquisition taking into account any Financial Indebtedness incurred or to be incurred by any member of the Restricted Group in relation to the proposed acquisition); and
(B)
to the extent that the Business Acquisition includes an acquisition of any Non-Consumer Debt or Account or any Non-UK Originated Accounts, having regard to the circumstances applying at the time the relevant member of the Restricted Group contractually commits to the relevant acquisition, that the relevant acquisition would not result in a failure to comply with the definition of "Portfolio Account";

 
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(vii)
in relation to a Business Acquisition, the acquired company, business or undertaking is incorporated or established, and carries on its principal business, in the United Kingdom, European Union, United States of America or Canada;
(viii)
in the reasonable opinion of the Parent, such acquisitions are directly or indirectly EBITDA enhancing over the next three Financial Years after the completion of such acquisition having regard to the Group as a whole and the nature of the Group's business in the debt purchase and debt collection market; and
(ix)
in relation to an acquisition of Portfolio Accounts to be funded by a Utilisation in an amount of more than:
(A)
5% of ERC (as determined by reference to the Compliance Certificate most recently delivered to the Agent under this Agreement or (if relevant) the last day of the most recently ended calendar month on a pro forma basis for such acquisition), the Parent notifies the Agent of such acquisition promptly following its completion and provides the Agent with such information in relation to the acquisition as the Agent or the Lenders may reasonably require promptly upon request; or
(B)
10% of ERC (as determined by reference to the Compliance Certificate most recently delivered to the Agent under this Agreement or (if relevant) the last day of the most recently ended calendar month on a pro forma basis for such acquisition), the prior written consent of the Majority Lenders has been obtained.
"Permitted Payment" has the meaning given to that term in the Intercreditor Agreement.
"Permitted Refinancing Indebtedness" means any Refinancing Indebtedness (as defined in Schedule 14 (Restrictive Covenants) permitted pursuant to Section 4.09 of the Note Indenture.
"Permitted Reorganisation" means:
(a)
an amalgamation, merger, transfer, consolidation, liquidation, dissolution or corporate reconstruction (each a "Reorganisation") on a solvent basis of a member of the Restricted Group where:
(i)
all of the business and assets of that member of the Restricted Group remain within the Restricted Group (and if that member of the Restricted Group was an Obligor immediately prior to such reorganisation being implemented, all of the business and assets of that member are retained by one or more other Obligors);
(ii)
if it or its assets or the shares in it were subject to the Transaction Security immediately prior to such Reorganisation, the Security Agent will enjoy substantially the same or equivalent Security over the same assets or, as

 
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the case may be, over it or the shares in it (or in each case over the shares of its successor) or, where a member of the Group is being dissolved or liquidated, its assets (after payment of creditors) are passed up to its Holding Company (subject to such Holding Company granting the same or equivalent Security over the relevant assets in favour of the Security Agent); and
(iii)
in the case of an amalgamation, merger or corporate reconstruction, if such member of the Group is an Obligor, the surviving entity is or becomes an Obligor to at least the same extent as such first mentioned Obligor immediately prior to the said amalgamation, merger or corporate reconstruction;
(b)
any Reorganisation permitted under Schedule 14 (Restrictive Covenants); or
(c)
any other Reorganisation of one or more members of the Restricted Group approved by the Majority Lenders (acting reasonably).
"Person" means and includes natural persons, corporations, limited partnerships, general partnerships, limited liability companies, limited liability partnerships, joint stock companies, joint ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organisations, whether or not legal entities, and governmental authorities.
"Portfolio" means the Portfolio Accounts.
"Portfolio Account" means:
(a)
a performing, sub-performing or charged-off consumer account, loans, receivables, mortgages, debentures, claims or other similar assets or instruments or any other consumer account owned by the Restricted Group or any Non-Consumer Debt or Account; or
(b)
a Right to Collect Account,
provided that:
(i)
the aggregate "ERC" amount of all Non-Consumer Debt or Accounts (calculated on the same basis as ERC and as set out in the further proviso below) at the time the relevant member of the Restricted Group contractually commits to the relevant acquisition does not exceed an amount equal to 7.5 per cent. of ERC (as determined by reference to the Compliance Certificate most recently delivered to the Agent under this Agreement or if relevant the last day of the most recently ended calendar Month adjusted on a pro forma basis for the proposed acquisition);
(ii)
the aggregate "ERC" amount of all Non-UK Originated Accounts (calculated on the same basis as ERC and as set out in the further proviso below) at the time the relevant member of the Restricted Group contractually commits to the relevant acquisition does not exceed an

 
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amount equal to 15 per cent. of ERC (as determined by reference to the Compliance Certificate most recently delivered to the Agent under this Agreement or if relevant the last day of the most recently ended calendar Month adjusted on a pro forma basis for the proposed acquisition); and
(iii)
the aggregate "ERC" amount of all Non-UK-and-Ireland Originated Accounts (calculated on the same basis as ERC and as set out in the further proviso below) at the time the relevant member of the Restricted Group contractually commits to the relevant acquisition does not exceed an amount equal to 5 per cent. of ERC (as determined by reference to the Compliance Certificate most recently delivered to the Agent under this Agreement or if relevant the last day of the most recently ended calendar Month adjusted on a pro forma basis for the proposed acquisition),
and provided further that for the purposes of this definition, when calculating the aggregate "ERC" amount of all such Non-Consumer Debt or Accounts, all such Non-UK Originated Accounts or all such Non-UK-and-Ireland Originated Accounts debt, it shall refer to the estimated remaining collections projected to be received over 84 Months from the debt portfolio of which such debt is a component multiplied by the ratio of Non-Consumer Debt or Accounts, Non-UK Originated Accounts or Non-UK-and-Ireland Originated Accounts to total accounts in that debt portfolio, respectively.
"Quarter Date" has the meaning given in Clause 26.2 (Financial definitions).
"Quasi Security" means any transaction in which a member of the Restricted Group agrees to:
(a)
sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the Restricted 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.
"Quotation Day" means, in relation to any period for which an interest rate is to be determined:
(a)
(if the currency is sterling) the first day of that period;
(b)
(if the currency is euro) two TARGET Days before the first day of that period; or

 
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(c)
(for any other currency) two Business Days before the first day of that period,
unless market practice differs in the Relevant Interbank Market for a currency, in which case the Quotation Day for that currency will be determined by the Agent in accordance with market practice in the Relevant Interbank Market (and if quotations would normally be given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Day will be the last of those days).
"Receiver" means a receiver or receiver and manager or administrative receiver of the whole or any part of the Charged Property.
"Reference Bank Quotation" means any quotation supplied to the Agent by a Base Reference Bank or an Alternative Reference Bank.
"Related Fund" in relation to a fund (the "first fund"), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.
"Relevant Acceleration Event" has the meaning given to that term in Schedule 16 (Agreed Security Principles).
"Relevant Jurisdiction" means, in relation to an Obligor:
(a)
its jurisdiction of incorporation;
(b)
any jurisdiction where it conducts a substantial part of its business; and
(c)
the jurisdiction whose laws govern the perfection of any of the Transaction Security Documents entered into by it.
"Relevant Interbank Market" means in relation to euro, the European interbank market and, in relation to any other currency, the London interbank market.
"Reliance Parties" means the Agent, the Arranger, the Security Agent, the Issuing Bank, each Original Lender and each person who accedes as a Lender as part of the primary syndication of the Facilities within six months of this Agreement.
"Renewal Request" means a written notice delivered to the Agent in accordance with Clause 6.6 (Renewal of a Letter of Credit).
"Repeating Representations" means each of the representations set out in Clause 24.1 (Status), Clause 24.2 (Binding obligations), Clause 24.3 (Non-conflict with other obligations), Clause 24.4 (Power and authority), paragraph (a) of Clause 24.5 (Validity and admissibility in evidence), Clause 24.6 (Governing law and enforcement), Clause 24.9 (No default), paragraph (e) of Clause 24.10 (No Misleading Information) paragraphs (e) and (f) of Clause 24.11 (Financial Statements), Clause 24.18 (Good title to assets), Clause 24.19 (Legal and beneficial ownership), Clause 24.20 (Shares),

 
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Clause 24.25 (Centre of main interests and establishments) and Clause 24.28 (Money Laundering Act).
"Replacement Debt" means Permitted Refinancing Indebtedness where the proceeds are applied within one (1) day of the incurrence of the Permitted Refinancing Indebtedness (provided that the Parent shall use its reasonable endeavours to procure that it is applied on the same day) in prepayment, purchase, defeasance or redemption of (a) the Notes or any Term Debt; or (b) any Permitted Refinancing Indebtedness.
"Representative" means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.
"Resignation Letter" means a letter substantially in the form set out in Schedule 7 (Form of Resignation Letter).
"Restricted Group" means the Parent and the Restricted Subsidiaries.
"Restricted Party" means a person that is (i) listed on, or owned or controlled by a person listed on, or acting on behalf of a person listed on any Sanctions List, (ii) located in, incorporated under the laws of, or owned or controlled by, or acting on behalf of, a person located in or organised under the laws of a country or territory that is the target of country or territory-wide Sanctions (including, without limitation, Cuba, Burma, Myanmar, Iran, North Korea, Sudan and Syria); or (iii) otherwise a target of Sanctions.
"Restricted Subsidiary" means a Subsidiary of the Parent other than an Unrestricted Subsidiary.
"Right to Collect Account" means a performing, sub-performing or charged-off account, loan, receivable, mortgage, debenture or claim or other similar asset or instrument that is owned by a Person that is not a member of the Restricted Group (a "Third Party") and in respect of which (a) such Third Party is unable or unwilling to dispose of the relevant performing, sub-performing or charged-off account, loan, receivable, mortgage, debenture or claim or other similar asset or instrument to a member of the Restricted Group; and (b) a member of the Restricted Group is entitled to collect and retain substantially all of the amounts due under such performing, sub-performing or charged-off account, loan, receivable, mortgage, debenture or claim or other similar asset or instrument or to receive amounts equivalent thereto.
"Rollover Loan" means one or more Loans:
(a)
made or to be made on the same day that:
(i)
a maturing Loan is due to be repaid; or
(ii)
a demand by the Issuing Bank pursuant to a drawing in respect of a Letter of Credit or payment of outstandings under an Ancillary Facility is due to be met;

 
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(b)
the aggregate amount of which is equal to or less than the amount of the maturing Loan or the relevant claim in respect of that Letter of Credit or Ancillary Facility Utilisation; and
(c)
made or to be made to the same Borrower for the purpose of:
(i)
refinancing that maturing Loan or Ancillary Facility Utilisation; or
(ii)
satisfying the relevant claim in respect of that Letter of Credit.
"Sanctioned Country" means a country or territory which is subject to:
(a)
general trade, economic or financial sanctions or embargoes imposed, administered or enforced by (i) the U.S. Department of Treasury's Office of Foreign Assets Control, (ii) the United Nations Security Council, (iii) the European Union or (iv) Her Majesty's Treasury of the United Kingdom; or
(b)
general economic or financial sanctions embargoes imposed by the US federal government and administered by the US State Department, the US Department of Commerce or the US Department of the Treasury.
Sanctioned Person” means, at any time, (a) any person listed in any Sanctions-related list of designated persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or by the United Nations Security Council, the European Union or any EU member state, (b) any person operating, organized or resident in a Sanctioned Country or (c) any person owned or controlled by any such person or persons.
"Sanctions" means the economic sanctions laws, regulations, or restrictive measures administered, enacted or enforced by the Sanctions Authorities (including, without limitation, 31 C.F.R., Subtitle B, Chapter V; the Iran Sanctions Act of 1996, as amended; the Comprehensive Iran Sanctions, Accountability and Divestment Act of 2010; Executive Order 13590; and the National Defence Authorisation Act for Fiscal Year 2012).
"Sanctions Authorities" means (i) the United States government, including, without limitation, the Office of Foreign Assets Control of the US Department of Treasury and the United States Department of State; (ii) the United Nations; (iii) the European Union or its Member States, including, without limitation, the United Kingdom, Her Majesty's Treasury, and the Department for Business, Innovation and Skills; or (iv) the respective governmental institutions and agencies of any of the foregoing.
"Sanctions List" means the "Specially Designated Nationals and Blocked Persons" list maintained by the Office of Foreign Assets Control of the US Department of Treasury, the Consolidated List of Financial Sanctions Targets and the Investment Ban List maintained by Her Majesty's Treasury, the consolidated list of persons, groups or entities subject to European Union sanctions administered by the European External Action Service or any similar list maintained by, or public announcement of Sanctions designation made by, any of the Sanctions Authorities.

 
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"Screen Rate" means:
(a)
in relation to LIBOR, the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate); and
(b)
in relation to EURIBOR, the euro interbank offered rate 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 (or any replacement Thomson Reuters page which displays that rate),
or, in each case, on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters. If such page or service ceases to be available, the Agent may specify another page or service displaying the relevant rate after consultation with the Parent and the Lenders.
"Secured Parties" has the meaning given to it in the Intercreditor Agreement.
"Security" means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
"Separate Loan" has the meaning given to that term in Clause 10.1 (Repayment of Loans).
"Specified Time" means a time determined in accordance with Schedule 10 (Timetables).
"Sponsor Affiliate" means the Investors and each of their respective Affiliates, any trust of which any of the Investors or any of their respective Affiliates are a trustee, any partnership of any of the Investors or any of their respective Affiliates is a partner and any trust, fund or other entity which is managed by, or is directly or indirectly under the control of, any of the Investors or any of their respective Affiliates provided that any such trust partnership fund, or other entity which has been established for at least six (6) Months for the purpose of making, purchasing or investing in loans or debt securities and which is managed or controlled independently from all other trusts, partnerships, funds, or other entities managed or controlled by any of the Investors or any of their respective Affiliates which have been established for the primary or main purpose of investing in the share capital of companies shall not constitute a Sponsor Affiliate.
"SSRCF LTV Ratio" has the meaning given to it in Clause 26.2 (Financial definitions).
"Structural Debt Document" means any document or agreement evidencing the terms of any Structural Liabilities.
"Structural Liabilities" has the meaning given to it in the Intercreditor Agreement.

 
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"Subordinated Liabilities" has the meaning given to that term in the Intercreditor Agreement.
"Subsidiary" means in relation to any person, any entity which is controlled directly or indirectly by that person and any entity (whether or not so controlled) treated as a subsidiary in the latest financial statements of that person from time to time, and "control" for this purpose means the direct or indirect ownership of the majority of the voting share capital of such entity or the right or ability to determine the composition of a majority of the board of directors (or like board) of such entity, in each case whether by virtue of ownership of share capital, contract or otherwise.
"Super Majority Lenders" means, at any time a Lender or Lenders whose Commitments aggregate 85 per cent. or more of the Total Commitments or, if the Total Commitments have been reduced to zero, aggregate 85 per cent. or more of the Total Commitments immediately prior to that reduction.
"TARGET Day" means any day on which TARGET2 is open for the settlement of payments in euro.
"TARGET2" means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilises a single shared platform and which was launched on 19 November 2007.
"Tax" or "Taxes" means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty, interest or other additional amount payable in connection with any failure to pay or any delay in paying any of the same).
"Term" means each period determined under this Agreement for which the Issuing Bank is under a liability under a Letter of Credit.
"Term Debt" means on any date, Financial Indebtedness with a scheduled maturity date 12 Months or more from the date on which such Financial Indebtedness was incurred (and for the avoidance of doubt excluding the Facilities and any Ancillary Facility).
"Termination Date" means 24 September 2017.
"Total Commitments" means the aggregate of the Commitments, being £195,000,000 at the date of this Agreement.
"Transaction Documents" means the Finance Documents, the Note Documents, the Structural Debt Documents and the Constitutional Documents.
"Transaction Security" means the Security created or expressed to be created in respect of the obligations of any of the Obligors under any of the Finance Documents pursuant to the Transaction Security Documents.
"Transaction Security Documents" means each of the documents listed as being a Transaction Security Document in Part III of Schedule 2 (Conditions Precedent), any document required to be delivered to the Agent under paragraph 11 of Part II of Schedule 2 (Conditions Precedent) together with any other document entered into by any Obligor

 
35
 


 


creating or expressed to create any Security over all or any part of its assets in respect of the obligations of any of the Obligors under any of the Finance Documents.
"Transfer Certificate" means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Agent and the Parent.
"Transfer Date" means, in relation to an assignment or a transfer, the later of:
(a)
the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and
(b)
the date on which the Agent executes the relevant Assignment Agreement or Transfer Certificate.
"Treasury Transactions" means any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price.
"Unpaid Sum" means any sum due and payable but unpaid by an Obligor under the Finance Documents.
"Unrestricted Subsidiary" has the meaning given to it in Schedule 14 (Restrictive Covenants).
"U.S. dollars", "$" and dollars denote lawful currency of the United States of America.
"USA PATRIOT Act" means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 of the United States.
"Utilisation" means a Loan or a Letter of Credit.
"Utilisation Date" means the date of a Utilisation, being the date on which the relevant Loan is to be made or the relevant Letter of Credit is to be issued.
"Utilisation Request" means a notice substantially in the relevant form set out in Part I or Part II of Schedule 3 (Requests and Notices).
"VAT" means value added tax as provided for in Council Directive 2006/112/EC, as amended, on the common system of value added tax and any other tax of a similar nature (including goods and services tax) wherever imposed.
1.2
Construction
(a)
Unless a contrary indication appears, a reference in this Agreement to:
(i)
the "Agent", any "Arranger", any "Finance Party", any "Issuing Bank", any "Lender", any "Hedge Counterparty", any "Obligor", any "Party", any "Secured Party", the "Security Agent" or any other person shall be construed so as to include its successors in title, permitted assigns and permitted transferees and, in the case of the Security Agent, any

 
36
 


 


person for the time being appointed as Security Agent or Security Agents in accordance with the Finance Documents;
(ii)
a document in "agreed form" is a document which is previously agreed in writing by or on behalf of the Parent and the Agent;
(iii)
"assets" includes present and future properties, revenues and rights of every description;
(iv)
a "Finance Document" or a "Transaction Document" or any other agreement or instrument is a reference to that Finance Document or Transaction Document or other agreement or instrument as amended, novated, supplemented, extended or restated;
(v)
"guarantee" means (other than in Clause 23 (Guarantee and Indemnity)) any guarantee, letter of credit, bond, indemnity or similar assurance against loss, or any obligation, direct or indirect, actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness;
(vi)
"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;
(vii)
a Lender's "participation" in relation to a Letter of Credit, shall be construed as a reference to the relevant amount that is or may be payable by a Lender in relation to that Letter of Credit;
(viii)
a "person" includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality);
(ix)
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, which is binding or customarily complied with)) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;
(x)
a provision of law is a reference to that provision as amended or re-enacted;
(xi)
a time of day is a reference to London time; and
(xii)
"the date hereof", "the date of this Agreement" and other like expressions is to 20 September 2012.

 
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(b)
Section, Clause and Schedule headings are for ease of reference only.
(c)
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
(d)
A Borrower providing "cash cover" for a Letter of Credit or an Ancillary Facility means a Borrower paying an amount in the currency of the Letter of Credit (or, as the case may be, the Ancillary Facility) to an interest-bearing account in the name of the Borrower and the following conditions being met:
(i)
the account is with the Security Agent or with the Issuing Bank or Ancillary Lender for which that cash cover is to be provided;
(ii)
subject to paragraph (b) of Clause 7.5 (Cash cover by Borrower), until no amount is or may be outstanding under that Letter of Credit or Ancillary Facility, withdrawals from the account may only be made to pay a Finance Party amounts due and payable to it under this Agreement in respect of that Letter of Credit or Ancillary Facility; and
(iii)
the Borrower has executed a security document over that account, in form and substance satisfactory to the Security Agent or the Issuing Bank or Ancillary Lender with which that account is held, creating a first ranking security interest over that account.
(e)
A Default (other than an Event of Default) is "continuing" if it has not been remedied or waived. An Event of Default is "continuing" if it has not been remedied or waived.
(f)
A Borrower "repaying" or "prepaying" a Letter of Credit or Ancillary Outstandings means:
(i)
that Borrower providing cash cover for that Letter of Credit or in respect of the Ancillary Outstandings;
(ii)
the maximum amount payable under the Letter of Credit or Ancillary Facility being reduced or cancelled in accordance with its terms; or
(iii)
the Issuing Bank or Ancillary Lender being satisfied that it has no further liability under that Letter of Credit or Ancillary Facility,
and the amount by which a Letter of Credit is, or Ancillary Outstandings are repaid or prepaid under paragraphs (f)(i) and (f)(ii) above is the amount of the relevant cash cover or reduction.
(g)
An amount borrowed includes any amount utilised by way of Letter of Credit or under an Ancillary Facility.
(h)
A Lender funding its participation in a Utilisation includes a Lender participating in a Letter of Credit.

 
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(i)
An outstanding amount of a Letter of Credit at any time is the maximum amount that is or may be payable by the relevant Borrower in respect of that Letter of Credit at that time.
(j)
A Letter of Credit is completely cancelled, discharged and released in accordance with its terms:
(i)
upon the Issuing Bank having paid the amount available under the Letter of Credit;
(ii)
upon return of the original Letter of Credit to the Issuing Bank together with the beneficiary's letter of release, or, if such original Letter of Credit has been lost, stolen, mutilated or destroyed, confirmation from the beneficiary of such Letter of Credit that this is the case and indemnities are provided satisfactory to the Issuing Bank from the beneficiary and other satisfactory assurances are provided as the Issuing Bank may require; or
(iii)
upon lapse of its Expiry Date and no demand having been received by the Issuing Bank on or before such Expiry Date.
(k)
Unless specifically provided to the contrary, a reference to a Subsidiary or Material Subsidiary of a member of the Restricted Group excludes each Unrestricted Subsidiary.
1.3
Third party rights
(a)
Unless expressly provided to the contrary in a Finance Document a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the "Third Parties Act") to enforce or enjoy the benefit of any term of this Agreement.
(b)
Subject to paragraph (h) of Clause 42.3 (Exceptions) but otherwise notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.
1.4
Intercreditor Agreement
Other than in respect of paragraphs (f) to (h) of Clause 42.3 (Exceptions), this Agreement is subject to the Intercreditor Agreement and in the event of any inconsistency between this Agreement and the Intercreditor Agreement, the Intercreditor Agreement shall prevail.
2.
THE FACILITY
2.1
The Facility
(a)
Subject to the terms of this Agreement, the Lenders make available a multicurrency revolving credit facility in an aggregate amount the Base Currency Amount of which is equal to the Total Commitments.

 
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(b)
Subject to the terms of this Agreement and the Ancillary Documents, an Ancillary Lender may make available an Ancillary Facility to any of the Borrowers in place of all or part of its Commitment.
2.2
Increase
(a)
The Parent may by giving prior notice to the Agent by no later than the date falling 20 Business Days after the effective date of a cancellation of:
(i)
the Available Commitments of a Defaulting Lender in accordance with Clause 11.6 (Right of cancellation in relation to a Defaulting Lender); or
(ii)
the Commitments of a Lender in accordance with Clause 11.1 (Illegality), Clause 12.1 (Exit) or Clause 12.3 (Disposal Proceeds and Insurance Proceeds),
request that the Total Commitments be increased (and the Total Commitments shall be so increased) in an aggregate amount of up to the amount of the Available Commitments or Commitments so cancelled as follows:
(iii)
the increased Commitment will be assumed by one or more Lenders or other banks, financial institutions, trusts, funds or other entities (each an "Increase Lender") selected by the Parent (each of which shall not be a Sponsor Affiliate or a member of the Restricted Group and which is further acceptable to the Agent (acting reasonably)) and each of which confirms 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;
(iv)
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;
(v)
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;
(vi)
the Commitments of the other Lenders shall continue in full force and effect; and
(vii)
any increase in the Total Commitments shall take effect on the date specified by the Parent in the notice referred to above or any later date on which the conditions set out in paragraph (b) below are satisfied.

 
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(b)
An increase in the Total Commitments will only be effective on:
(i)
the execution by the Agent of an Increase Confirmation from the relevant Increase Lender;
(ii)
in relation to an Increase Lender which is not a Lender immediately prior to the relevant increase:
(A)
the Increase Lender entering into the documentation required for it to accede as a party to the Intercreditor Agreement; and
(B)
the performance by the Agent of 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 completion of which the Agent shall promptly notify to the Parent, the Increase Lender and the Issuing Bank; and
(iii)
the Issuing Bank consenting to that increase.
(c)
Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective.
(d)
Unless the Agent otherwise agrees or the increased Commitment is assumed by an existing Lender, the Parent shall, on the date upon which the increase takes effect, pay to the Agent (for its own account) a fee of £2,000 and the Parent shall promptly on demand pay the Agent and the Security Agent the amount of all costs and expenses (including legal fees) reasonably incurred by either of them and, in the case of the Security Agent, by any Receiver or Delegate in connection with any increase in Commitments under this Clause 2.2.
(e)
The Parent may pay to the Increase Lender a fee in the amount and at the times agreed between the Parent and the Increase Lender in a Fee Letter.
(f)
Clause 30.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 in relation to an Increase Lender as if references in that Clause to:
(i)
an "Existing Lender" were references to all the Lenders immediately prior to the relevant increase;
(ii)
the "New Lender" were references to that "Increase Lender"; and
(iii)
a "re-transfer" and "re-assignment" were references to respectively a "transfer" and "assignment".
2.3
Accordion Increase in Commitments

 
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(a)
Subject to this Clause 2.3, the Parent may at any time and from time to time following the Closing Date, request an increase in the Total Commitments (such increase, the "Additional Commitments") by delivering to the Agent a duly completed Additional Commitment Increase Notice not later than 10 Business Days' (or such shorter period as the Agent and the Parent may agree) prior to the proposed date for the commencement of the availability period in respect of the Additional Commitments so requested.
(b)
Each Additional Commitment Increase Notice shall specify the following matters:
(i)
the identity of each Lender or other bank, financial institution, trust, fund or other entity (each, an "Additional Commitment Lender") selected by the Parent (each of which shall not be a Sponsor Affiliate or a member of the Restricted Group) that is willing to assume all of the obligations of a Lender corresponding to an Additional Commitment;
(ii)
the aggregate amount of the Additional Commitments requested (the "Request Amount"), which amount must comply with the Additional Commitment Restrictions;
(iii)
the proposed availability period in respect of the requested Additional Commitments, which period must comply with the Additional Commitment Restrictions;
(iv)
the proposed Margin (and any applicable proposed Margin ratchet), each of which must comply with the Additional Commitment Restrictions;
(v)
the identities of the Borrower(s) in respect of the requested Additional Commitments; and
(vi)
the currency or currencies in which the Additional Commitments may be drawn,
and shall be validly delivered only if executed by the Parent, the Borrower in relation to the Additional Commitment, and each applicable Additional Commitment Lender.
(c)
No existing Lender shall (unless otherwise agreed by that Lender) be obliged to provide any Additional Commitment but:
(i)
Shawbrook Bank Limited shall be given the option to provide up to the first £5,000,000 of any Additional Commitments requested (provided that if Additional Commitments are requested in more than one Additional Commitment Increase Notice, this paragraph (i) shall, without prejudice to paragraph (ii) below, only apply to the first £5,000,000 of the aggregate Additional Commitments requested in those Additional Commitment Increase Notices); and

 
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(ii)
thereafter the Lenders who were party to this Agreement on the 2015 Effective Date (if at that time still a Lender and including for the avoidance of doubt Shawbrook Bank Limited to the extent that it is still a Lender at that time) shall be given the option to provide Additional Commitments,
in each case before other potential lenders are approached.
(d)
The Parent may request Additional Commitments not exceeding £55,000,000 in aggregate from and including the 2015 Effective Date.
(e)
At no time shall the Total Commitments be increased under this Clause 2.3 so as to be more than £250,000,000.
(f)
All Additional Commitments shall be made available on the same terms (including as to ranking, pro rata sharing and security, but save only in respect of any margin and/or fees, availability period and termination date) as the Facility and the Additional Commitments may not enjoy the benefit of any more onerous financial or other undertakings than apply to the Facility generally.
(g)
Following the delivery of a valid Additional Commitment Increase Notice, the requested Additional Commitments shall become effective on the later of:
(i)
the execution by the Agent of the Additional Commitment Increase Notice. The Agent shall, subject to paragraph (ii)(B) below, as soon as reasonably practicable after receipt by it of a duly completed Additional Commitment Increase Notice appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Additional Commitment Increase Notice; and
(ii)
in relation to an Additional Commitment Lender which is not a Lender immediately prior to the relevant increase, the later of:
(A)
the Additional Commitment Lender entering into the documentation required for it to accede as a party to the Intercreditor Agreement as a Lender under this Agreement; and
(B)
the performance by the Agent of all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assumption by the Additional Commitment Lender of the relevant Additional Commitments, the completion of which the Agent shall promptly notify to the Parent, the Additional Commitment Lender and the Issuing Bank (if any).
(h)
The introduction of Additional Commitments pursuant to this Clause 2.3 shall occur as follows:
(i)
each Additional Commitment will be assumed by the relevant Additional Commitment Lender, each of whom confirms its willingness to assume

 
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and does assume all of the obligations of a Lender corresponding to that part of the Additional Commitments which it is to assume, as if it had been an Original Lender, subject to paragraph (i) below;
(ii)
each of the Obligors and each Additional Commitment Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Additional Commitment Lender would have assumed and/or acquired had the Additional Commitment Lender been an Original Lender, subject to paragraph (i) below;
(iii)
to the extent not already a Party as a Lender, each Additional Commitment Lender shall become a Party as a Lender and each Additional Commitment Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Additional Commitment Lender and those Finance Parties would have assumed and/or acquired had the Additional Commitment Lender been an Original Lender, subject to paragraph (i) below;
(iv)
the Commitments of the other Lenders shall continue in full force and effect; and
(v)
the increase in the Total Commitments shall take effect on the Additional Commitment Increase Date.
(i)
At the time of the implementation of the Additional Commitment Increase, if the Facility is not drawn and the terms of the Additional Commitment Increase are the same as those of the Facility, the amount of the Commitments shall be increased by the amount of the Additional Commitments. If at the time of the implementation of the Additional Commitment Increase, the Borrower has made a Utilisation under the Facility which is outstanding or if the terms of the Additional Commitment Increase are not the same as those of the Facility, each Additional Commitment Lender, by executing the Additional Commitment Increase Notice, confirms (for the avoidance of doubt) that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective in order to implement the Additional Commitment Increase.
(j)
The Parent shall promptly on demand pay the Agent and the Security Agent the amount of all costs and expenses (including legal fees) reasonably incurred by either of them and, in the case of the Security Agent, by any Receiver or Delegate in connection with any increase in Commitments under this Clause 2.3.
(k)
The Parent may, subject to the Additional Commitment Restrictions, pay to an Additional Commitment Lender a fee in the amount and at the times agreed between the Parent and that Additional Commitment Lender in a Fee Letter.
(l)
On and from the Additional Commitment Increase Date this Agreement shall be amended, read and construed as if the Additional Commitment Lender were party

 
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hereto with a Commitment or Commitments as detailed in the Additional Commitment Increase Notice.
(m)
Any amounts payable to the Lenders by any Obligor on or before an Additional Commitment Increase Date (including, without limitation, all interest, fees and commission payable up to (but excluding) that Additional Commitment Increase Date) in respect of any period ending on or prior to that Additional Commitment Increase Date shall be for the account of the Lenders prior to such Additional Commitment Increase Date and no Additional Commitment Lender shall have any interest in, or any rights in respect of, any such amount (save in respect of their Commitments up to (but excluding) that Additional Commitment Increase Date).
(n)
Each Lender authorises the Agent to execute on its behalf:
(i)
any Additional Commitment Increase Notice delivered to it pursuant to this Clause 2.3; and
(ii)
any amendments required to the Finance Documents that are consequential on, incidental to or required to implement or reflect the introduction of Additional Commitments pursuant to this Clause 2.3.
2.4
Available Commitments
In any Utilisation Request for a drawdown of an Additional Commitment, the Borrower shall specify the amount of the Additional Commitments that it has utilised from the 2015 Effective Date up to and including the date of that Utilisation Request.
2.5
Finance Parties' rights and obligations
(a)
The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
(b)
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt.
(c)
A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.
2.6
Obligors' Agent

 
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(a)
Each Obligor (other than the Parent) by its execution of this Agreement or an Accession Deed irrevocably appoints the Parent to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:
(i)
the Parent on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions (including, in the case of a Borrower, Utilisation Requests), to execute on its behalf any Accession Deed, to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Obligor notwithstanding that they may affect the Obligor, without further reference to or the consent of that Obligor; and
(ii)
each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Parent,
and in each case the Obligor shall be bound as though the Obligor itself had given the notices and instructions (including, without limitation, any Utilisation Requests) or executed or made the agreements or effected the amendments, supplements or variations, or received the relevant notice, demand or other communication.
(b)
Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Obligors' Agent or given to the Obligors' Agent under any Finance Document on behalf of another Obligor or in connection with any Finance Document (whether or not known to any other Obligor and whether occurring before or after such other Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Obligors' Agent and any other Obligor, those of the Obligors' Agent shall prevail.
3.
PURPOSE
3.1
Purpose
Each Borrower shall apply all amounts borrowed by it under the Facility, any Letter of Credit issued and any utilisation of any Ancillary Facility towards the general corporate and working capital purposes of the Restricted Group (but not towards (i) the payment of transaction costs, (ii) the purchase or prepayment of the Notes, any Replacement Debt, or any other Term Debt, (iii) the payment of any dividend, redemption, repurchase, defeasement, retirement, repayment, premium or any other distribution in respect of share capital other than a Closing Date Dividend, (iv) to provide any backstop, guarantee, cash collateral or other support in respect of any facilities that exist on the Closing Date or (v) in the case of any utilisation of any Ancillary Facility, towards repayment or prepayment of the Facility or any claims in respect of Letters of Credit).
3.2
New purpose

 
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In the event that a Borrower makes a Utilisation under the Facility in order to apply the proceeds of that Utilisation in or towards making a Permitted Acquisition (as identified in the relevant Utilisation Request) and that Permitted Acquisition is abandoned, the Borrower shall promptly notify the Agent and shall specify a new permitted purpose for the application of the Loan.
3.3
Monitoring
No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.
4.
CONDITIONS OF UTILISATION
4.1
Initial conditions precedent
The Lenders will only be obliged to comply with Clause 5.4 (Lenders' participation) in relation to any Utilisation if on or before the Utilisation Date for that Utilisation, the Agent has received or is satisfied it will receive all of the documents and other evidence listed in Part I of Schedule 2 (Conditions precedent) in form and substance satisfactory to the Agent (acting reasonably). The Agent shall notify the Parent and the Lenders promptly upon being so satisfied.
4.2
Further conditions precedent
Subject to Clause 4.1 (Initial Conditions Precedent), the Lenders will only be obliged to comply with Clause 5.4 (Lenders' participation), if on the date of the Utilisation Request and on the proposed Utilisation Date:
(a)
in the case of a Rollover Loan, no notice has been given pursuant to Clause 28.19 (Acceleration); and
(b)
in the case of any other Utilisation, unless the Majority Lenders and the Parent agree otherwise:
(i)
no Default is continuing or would result from the proposed Utilisation;
(ii)
in relation to the initial Utilisation, all the representations and warranties in Clause 24 (Representations) or, in relation to any other Utilisation, the Repeating Representations to be made by each Obligor, by reference to the facts and circumstances then existing are true and correct in all material respects (to the extent not already subject to materiality) and will be true and correct in all material respects (to the extent not already subject to materiality) immediately after the making of the relevant Utilisation; and
(iii)
no breach of the financial covenants in paragraphs (a) and (b) of Clause 26.1 (Financial condition) in the circumstances referred to in paragraph (c)(ii) of Clause 26.1 (Financial condition) is continuing or would result from the making of the relevant Utilisation (calculated pro forma assuming the immediate application of the proceeds of such

 
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Utilisation for the relevant Utilisation and as at the date of the proposed Utilisation).
4.3
Conditions relating to Optional Currencies
(a)
A currency will constitute an Optional Currency in relation to a Utilisation if:
(i)
it is readily available in the amount required and freely convertible into the Base Currency in the Relevant Interbank Market on the Quotation Day and the Utilisation Date for that Utilisation; and
(ii)
it is in euros or U.S. dollars, or any other currency approved by the Agent (acting on the instructions of all the Lenders).
(b)
If the Agent has received a written request from the Parent for a currency to be approved under paragraph (a)(ii) above, the Agent will confirm to the Parent by the Specified Time:
(i)
whether or not all Lenders have granted their approval; and
(ii)
if approval has been granted, the minimum amount for any subsequent Loan in that currency.
4.4
Maximum number of Utilisations
(a)
A Borrower (or the Parent) may not deliver a Utilisation Request if as a result of the proposed Utilisation 10 or more Loans would be outstanding.
(b)
Any Separate Loan shall not be taken into account in this Clause 4.4.
(c)
A Borrower (or the Parent) may not request that a Letter of Credit be issued if as a result of the proposed Utilisation more than 5 (or such other number as may be agreed by the Parent, the Issuing Bank and the Agent) Letters of Credit would be outstanding.
4.5
Lending Affiliates
(a)
Each Lender may discharge its obligations in respect of a Utilisation under this Agreement by nominating one or more branches or affiliates to participate in that Utilisation, provided that such branch or affiliate is not a Sanctioned Person and is not incorporated or established, and does not carry on business, in a jurisdiction that is a Sanctioned Country or is a Competitor.
(b)
A Lender may nominate a branch or affiliate to participate in one or more Utilisations:
(i)
in respect of an Original Lender, in this Agreement; or
(ii)
in the Transfer Certificate or Assignment Agreement (as applicable) pursuant to which such Lender becomes party to this Agreement.

 
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(c)
Any branch or affiliate nominated by a Lender to participate in a Utilisation shall:
(i)
participate in compliance with the terms of this Agreement; and
(ii)
be entitled, to the extent of its participation, to all the rights and benefits of a Lender under the Finance Documents provided that such rights and benefits shall be exercised on its behalf by its nominating Lender save where law or regulation requires the branch or affiliate to do so.
(d)
Each Lender shall remain liable and responsible for the performance of all obligations assumed by a branch or affiliate on its behalf and non-performance of a Lender's obligations by its branch or affiliate shall not relieve such Lender from its obligations under this Agreement.
(e)
Any notice or communication to be made to a branch or an affiliate of a Lender pursuant to this Agreement:
(i)
may be served directly upon the branch or affiliate, at the address supplied to the Agent by the nominating Lender pursuant to its nomination of such branch or affiliate, where the Lender or the relevant branch or affiliate requests this; or
(ii)
may be delivered to the lending office of the Lender.
(f)
If a Lender nominates an affiliate, that Lender and that affiliate:
(i)
will be treated as having a single Commitment but for all other purposes other than those referred to in paragraphs (d) and (e)(ii) above will be treated as separate Lenders; and
(ii)
will be regarded as a single Lender for the purpose of (A) voting in relation to any matter or (B) compliance with Clause 30 (Changes to the Lenders).
4.6
Option to Extend
(a)
On and from the date that is 12 Months after the date of this Agreement, the Borrower shall be entitled to request an extension of the Facility and the Commitments of each Lender, for an additional period of 364 days, by giving notice to the Agent (the "Extension Request") not less than 30 days before the Termination Date (in this Clause 4.6, the "Original Revolving Termination Date"). Such notice shall be made in writing, be irrevocable and binding on the Borrower.
(b)
The Agent shall forward a copy of the Extension Request to the Lenders as soon as practicable after receipt of it.
(c)
If a Lender, in its individual and sole discretion, agrees to the extension requested by the Borrower, it shall give notice to the Agent (a "Notice of Extension") no later than 20 days prior to the Original Revolving Termination Date (or such later date as the Parent and the Agent may agree) and the Agent shall notify the Parent

 
49
 


 


as soon as practicable thereafter. If a Lender does not give such Notice of Extension by such date, then that Lender shall be deemed to have refused that extension.
(d)
Each Lender shall use its reasonable endeavours to respond to an Extension Request within 20 days (or such later date as the Parent and the Agent may agree) of its receipt of such Extension Request from the Agent.
(e)
Nothing shall oblige a Lender to agree to an Extension Request.
(f)
The Original Revolving Termination Date shall be extended if and when either:
(i)
all the Lenders have agreed to it by giving a Notice of Extension; or
(ii)
one or more Lenders (each a "Consenting Lender") have agreed by giving a Notice of Extension,
in which case, in the case of such Consenting Lenders, the Original Revolving Termination Date shall then be extended to the day which is 364 days from (and including) the Original Revolving Termination Date.
(g)
If less than all the Lenders give a Notice of Extension, then the Commitments and the share of any outstanding Loans of the Lenders which have not agreed to the extension shall be reduced to zero on the Original Revolving Termination Date (and those Lenders shall cease from that date to be Lenders under this Agreement and the Borrower shall repay any outstanding amounts of the Facility that will at such date be due and payable by the Borrower to those Lenders in accordance with the provisions of this Agreement on the Original Revolving Termination Date) and the amount of the Facility shall be reduced accordingly.
(h)
The Agent shall no later than 5 Business Days prior to the Original Revolving Termination Date inform the Parent, each Borrower and each Lender that will continue to provide a Commitment after the Original Revolving Termination Date of the Total Commitments that will apply on and from the Original Revolving Termination Date.
5.
UTILISATION – LOANS
5.1
Delivery of a Utilisation Request
A Borrower (or the Parent on its behalf) may utilise the Facility by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time.
5.2
Completion of a Utilisation Request for Loans
(a)
Each Utilisation Request for a Loan is irrevocable and will not be regarded as having been duly completed unless:
(i)
the proposed Utilisation Date is a Business Day within the Availability Period;

 
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(ii)
the amount and currency of the Utilisation complies with Clause 5.3 (Currency and Amount); and
(iii)
the proposed Interest Period complies with Clause 15 (Interest Periods).
(b)
Only one Utilisation may be requested in each Utilisation Request, however no Utilisation Request for a Loan may be made until the date following the Closing Date (save that a Utilisation Request may be made in respect of a Loan to be advanced on the Closing Date for the purposes of funding a Closing Date Dividend where the proposed Interest Period is 1 Business Day).
5.3
Currency and amount
(a)
The currency specified in a Utilisation request must be the Base Currency or an Optional Currency.
(b)
The amount of the proposed Utilisation must be:
(i)
if the currency selected is the Base Currency, a minimum of £1,000,000 or, if less, the Available Facility;
(ii)
if the currency selected is euro, a minimum of EUR1,000,000 or, if less, the Available Facility;
(iii)
if the currency selected is U.S. dollars, a minimum of USD1,000,000 or, if less, the Available Facility; and
(iv)
if the currency selected is any other Optional Currency, the minimum amount specified by the Agent pursuant to paragraph (b) of Clause 4.3 (Conditions relating to Optional Currencies) or, if less, the Available Facility.
5.4
Lenders' participation
(a)
If the conditions set out in this Agreement have been met, and subject to Clause 10.1 (Repayment of Loans), each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.
(b)
The amount of each Lender's participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.
(c)
The Agent shall determine the Base Currency Amount of each Loan which is to be made in an Optional Currency and notify each Lender of the amount, currency and the Base Currency Amount of each Loan, the amount of its participation in that Loan and, if different, the amount of that participation to be made available in cash by the Specified Time.
5.5
Limitations on Utilisations

 
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The maximum aggregate amount of all Letters of Credit outstanding together with the amount of the Ancillary Commitments shall not at any time exceed 50% of the Total Commitments.
5.6
Cancellation of Commitment
(a)
The Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period.
(b)
The Commitments shall be cancelled in full in the event that the Closing Date does not occur on or before the date that is seven (7) Business Days after the date of this Agreement.
5.7
Clean down
The Parent shall ensure that the aggregate of:
(a)
all Loans;
(b)
any cash loan element of the Ancillary Outstandings under all the Ancillary Facilities; and
(c)
(to the extent not included within paragraphs (a) and (b) above), any cash loans made to a member of the Restricted Group covered by a Letter of Credit or an Ancillary Facility;
LESS
(d)
any amount of cash and Cash Equivalent Investments held by members of the Restricted Group,
(as confirmed in a certificate signed by two (2) authorised signatories of the Parent provided to the Agent within 15 Business Days after the end of each Financial Year) shall be equal to or less than 90 per cent. of the Total Commitments for a period of not less than 3 successive Business Days (a "Clean Down Period") in each of its Financial Years. Not less than three (3) Months shall elapse between Clean Down Periods.
6.
UTILISATION - LETTERS OF CREDIT
6.1
The Facility
(a)
The Facility may be utilised by way of Letters of Credit.
(b)
Other than Clause 5.5 (Limitations on Utilisations) and Clause 5.7 (Clean down), Clause 5 (Utilisation - Loans) does not apply to utilisations by way of Letters of Credit.
(c)
The Expiry Date of a Letter of Credit shall not fall on a day which is after the Termination Date.
6.2
Delivery of a Utilisation Request for Letters of Credit

 
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(a)
A Borrower (or the Parent on its behalf) other than the Parent may request a Letter of Credit to be issued (for its own, or another member of the Restricted Group's, obligations) by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time. On receipt of a duly completed Utilisation Request, the Agent shall promptly deliver such Utilisation Request to the Issuing Bank and each Lender.
(b)
The Parent may not request that a Letter of Credit be issued on its own behalf.
6.3
Completion of a Utilisation Request for Letters of Credit
Each Utilisation Request for a Letter of Credit is irrevocable and will not be regarded as having been duly completed unless:
(a)
it specifies that it is for a Letter of Credit;
(b)
it identifies the Borrower of the Letter of Credit;
(c)
it identifies the Issuing Bank that is to issue the Letter of Credit;
(d)
the proposed Utilisation Date is a Business Day within the Availability Period;
(e)
the amount and currency of the Letter of Credit complies with Clause 6.4 (Currency and Amount);
(f)
the form of Letter of Credit is attached;
(g)
the Expiry Date of the Letter of Credit falls on or before the Termination Date in respect of the relevant Facility;
(h)
the Term of the Letter of Credit is 12 Months or less (or such longer period agreed with the Issuing Bank);
(i)
the delivery instructions for the Letter of Credit are specified; and
(j)
the beneficiary of the Letter of Credit is identified and the Issuing Bank is able to comply with all applicable laws and regulations which it is legally required to comply with in relation to the jurisdiction of incorporation and identity of the beneficiary and in relation to any beneficiary of any Letter of Credit which is not an Obligor, such beneficiary satisfies the Issuing Bank's normal internal Letter of Credit issuing policies, including without limitation that the beneficiary is not a Restricted Party.
6.4
Currency and amount
(a)
The currency specified in a Utilisation Request must be the Base Currency or an Optional Currency.

 
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(b)
Subject to Clause 5.5 (Limitations on Utilisations), the amount of the proposed Letter of Credit must be an amount whose Base Currency Amount is not more than the Available Facility and which is:
(i)
if the currency selected is the Base Currency, a minimum of £1,000,000 (or such other amount agreed by the Parent and the Issuing Bank) or, if less, the Available Facility; or
(ii)
if the currency selected is euro, a minimum of EUR1,000,000 (or such other amount agreed by the Parent and the Issuing Bank) or, if less, the Available Facility;
(iii)
if the currency selected is U.S. dollars, a minimum of USD1,000,000 (or such other amount agreed by the Parent and the Issuing Bank) or, if less, the Available Facility; and
(iv)
if the currency selected is any other Optional Currency, the minimum amount specified by the Agent pursuant to paragraph (b) of Clause 4.3 (Conditions relating to Optional Currencies) or, if less, the Available Facility.
6.5
Issue of Letters of Credit
(a)
If the conditions set out in this Agreement have been met, the Issuing Bank shall issue the Letter of Credit on the Utilisation Date.
(b)
Subject to Clause 4.1 (Initial conditions precedent), the Issuing Bank will only be obliged to comply with paragraph (a) above in relation to a Letter of Credit, if on the date of the Utilisation Request or Renewal Request and on the proposed Utilisation Date:
(i)
in the case of a Letter of Credit to be renewed in accordance with Clause 6.6 (Renewal of a Letter of Credit) no Event of Default has occurred and is continuing under Clause 28.7 (Insolvency) or Clause 28.8 (Insolvency proceedings) in respect of the proposed Borrower of the Letter of Credit and no notice has been given pursuant to Clause 28.19 (Acceleration); and
(ii)
in the case of any other Utilisation in respect of a Letter of Credit:
(A)
no Default is continuing or would result from the proposed Utilisation;
(B)
in relation to any Utilisation on the Closing Date, all the representations and warranties in Clause 24 (Representations) or, in relation to any other Utilisation, the Repeating Representations to be made by each Obligor by reference to the facts and circumstances then existing are true in all material respects (to the extent not already subject to materiality) and will be true and correct in all material respects (to the extent not already subject

 
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to materiality) immediately after the making of the relevant Utilisation; and
(C)
no breach of the financial covenants in paragraphs (a) and (b) of Clause 26.1 (Financial condition) in the circumstances referred to in paragraph (c)(ii) of Clause 26.1 (Financial condition) is continuing or would result from the making of the relevant Utilisation (calculated pro forma assuming the immediate application of the proceeds of such Utilisation for the relevant Utilisation and as at the date of the proposed Utilisation).
(c)
The amount of each Lender's participation in each Letter of Credit will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to the issue of the Letter of Credit.
(d)
The Agent shall determine the Base Currency Amount of each Letter of Credit which is to be issued in an Optional Currency and shall notify the Issuing Bank and each Lender of the details of the requested Letter of Credit and its participation in that Letter of Credit by the Specified Time.
(e)
The Issuing Bank must notify the relevant Borrower promptly if it becomes aware that:
(i)
it is unlawful in any jurisdiction for the Issuing Bank to perform any of its obligations under a Finance Document or to have outstanding any Letter of Credit; or
(ii)
a Letter of Credit has, since the date of its issue, become connected with:
(A)
a state or territory which is on a Sanctions List as being subject to a Sanction; or
(B)
a Restricted Party.
(f)
After notification under paragraph (e) above:  
(i)
the relevant Borrower must use all reasonable endeavours to ensure the release of the liability of the Issuing Bank under each outstanding Letter of Credit if that release would result in paragraph (e) above no longer being applicable;
(ii)
failing this, the Relevant Borrower must repay or prepay the L/C Proportion of each Lender in each Letter of Credit requested by it on the date specified in paragraph (g) below if such repayment or prepayment would result in paragraph (e) above no longer being applicable; and
(iii)
no further Letter of Credits will be issued in the relevant jurisdiction until the Issuing Bank (acting reasonably) is satisfied that the reason for the notification under paragraph (e) above is no longer applicable.

 
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(g)
The date for repayment or prepayment of a Lender's share in a Letter of Credit will be the date specified by the Issuing Bank in the notification under paragraph (e) above and which must not be earlier than (i) the last day of any applicable grace period allowed by law and (ii) the date that is 5 Business Days after the date of that notice.
6.6
Renewal of a Letter of Credit
(a)
A Borrower (or the Parent on its behalf) may request that any Letter of Credit issued on behalf of that Borrower be renewed by delivery to the Agent of a Renewal Request in substantially similar form to a Utilisation Request for a Letter of Credit by the Specified Time. On receipt of a Renewal Request, the Agent shall promptly deliver such Renewal Request to the Issuing Bank and each Lender.
(b)
The Finance Parties shall treat any Renewal Request in the same way as a Utilisation Request for a Letter of Credit except that the condition set out in paragraph (f) of Clause 6.3 (Completion of a Utilisation Request for Letters of Credit) shall not apply.
(c)
The terms of each renewed Letter of Credit shall be the same as those of the relevant Letter of Credit immediately prior to its renewal, except that:
(i)
its amount may be less than the amount of the Letter of Credit immediately prior to its renewal; and
(ii)
its Term shall start on the date which was the Expiry Date of the Letter of Credit immediately prior to its renewal, and shall end on the proposed Expiry Date specified in the Renewal Request.
(d)
If the conditions set out in this Agreement have been met, the Issuing Bank shall amend and re-issue any Letter of Credit pursuant to a Renewal Request.
6.7
Reduction of a Letter of Credit
(a)
If, on the proposed Utilisation Date of a Letter of Credit, any of the Lenders under the Facility to be utilised is a Non-Acceptable L/C Lender and:
(i)
that Lender has failed to provide cash collateral to the Issuing Bank in accordance with Clause 7.4 (Cash collateral by Non-Acceptable L/C Lender); and
(ii)
either:
(A)
the Issuing Bank has not required the relevant Borrower to provide cash cover pursuant to Clause 7.5 (Cash cover by Borrower); or
(B)
the relevant Borrower has failed to provide cash cover to the Issuing Bank in accordance with Clause 7.5 (Cash cover by Borrower),

 
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the Issuing Bank may reduce the amount of that Letter of Credit by an amount equal to the amount of the participation of that Non-Acceptable L/C Lender in respect of that Letter of Credit and that Non-Acceptable L/C Lender shall be deemed not to have any participation (or obligation to indemnify the Issuing Bank) in respect of that Letter of Credit for the purposes of the Finance Documents.
(b)
The Issuing Bank shall notify the Agent, the Parent and the Lenders of each reduction made pursuant to this Clause 6.7.
(c)
This Clause 6.7 shall not affect the participation of each other Lender in that Letter of Credit.
6.8
Revaluation of Letters of Credit
(a)
If any Letters of Credit are denominated in an Optional Currency, the Agent shall on the last day of each Quarter Date recalculate the Base Currency Amount of each Letter of Credit by notionally converting into the Base Currency the outstanding amount of that Letter of Credit on the basis of the Agent's Spot Rate of Exchange on the date of calculation.
(b)
A Borrower (or the Parent on its behalf) shall, if requested by the Agent within 10 days of any calculation under paragraph (a) above, ensure that within three Business Days sufficient Utilisations are prepaid to prevent the Base Currency Amount of the Utilisations exceeding the Total Commitments (after deducting the total Ancillary Commitments) following any adjustment to a Base Currency Amount under paragraph (a) above.
7.
LETTERS OF CREDIT
7.1
Immediately payable
If a Letter of Credit or any amount outstanding under a Letter of Credit is expressed to be immediately payable, the Borrower that requested (or on behalf of which the Parent requested) the issue of that Letter of Credit shall repay or prepay that amount immediately.
7.2
Claims under a Letter of Credit
(a)
Each Borrower irrevocably and unconditionally authorises the Issuing Bank to pay any claim made or purported to be made under a Letter of Credit requested by it (or requested by the Parent on its behalf) and which appears on its face to be in order (in this Clause 7, a "claim").
(b)
Each Borrower shall within three (3) Business Days of demand (or, if such claim is being funded by way of a Utilisation, within five (5) Business Days of demand) pay to the Agent for the Issuing Bank an amount equal to the amount of any claim.

 
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(c)
Each Borrower acknowledges that the Issuing Bank:
(i)
is not obliged to carry out any investigation or seek any confirmation from any other person before paying a claim; and
(ii)
deals in documents only and will not be concerned with the legality of a claim or any underlying transaction or any available set-off, counterclaim or other defence of any person.
(d)
The obligations of a Borrower under this Clause 7 will not be affected by:
(i)
the sufficiency, accuracy or genuineness of any claim or any other document; or
(ii)
any incapacity of, or limitation on the powers of, any person signing a claim or other document.
(e)
Without prejudice to the relevant obligations under the Letter of Credit, the Issuing Bank confirms to the Lenders that before making any payment in respect of a claim it will conduct such checks as it considers reasonable and necessary to ensure that any payment made would not contravene regulatory or statutory restrictions or any internal policy applicable to it and in relation to any beneficiary of any Letter of Credit which is not an Obligor, such beneficiary satisfies the Issuing Bank's normal internal Letter of Credit issuing policies, including without limitation that the beneficiary is not a Restricted Party.
7.3
Indemnities
(a)
Each Borrower shall immediately on demand indemnify the Issuing Bank against any cost, loss or liability incurred by the Issuing Bank (otherwise than by reason of the Issuing Bank's gross negligence or wilful misconduct) in acting as the Issuing Bank under any Letter of Credit requested by (or on behalf of) that Borrower.
(b)
Each Lender shall (according to its L/C Proportion) immediately on demand indemnify the Issuing Bank against any cost, loss or liability incurred by the Issuing Bank (otherwise than by reason of the Issuing Bank's gross negligence or wilful misconduct) in acting as the Issuing Bank under any Letter of Credit (unless the Issuing Bank has been reimbursed by an Obligor pursuant to a Finance Document) provided that the Issuing Bank shall apply any cash cover that it holds for itself in respect of that Letter of Credit to the extent that it is able to do so. If it is prevented from applying such cash cover in respect of that Letter of Credit then clause 35.1(b) (Payments to Lenders) shall not apply for the duration of such prevention.
(c)
If any Lender is not permitted (by its constitutional documents or any applicable law) to comply with paragraph (b) above, then that Lender will not be obliged to comply with paragraph (b) and shall instead be deemed to have taken, on the date the Letter of Credit is issued (or if later, on the date the Lender's participation in the Letter of Credit is transferred or assigned to the Lender in accordance with

 
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the terms of this Agreement), an undivided interest and participation in the Letter of Credit in an amount equal to its L/C Proportion of that Letter of Credit. On receipt of demand from the Agent, that Lender shall pay to the Agent (for the account of the Issuing Bank) an amount equal to its L/C Proportion of the amount demanded.
(d)
The Borrower which requested (or on behalf of which the Parent requested) a Letter of Credit shall immediately on demand reimburse any Lender for any payment it makes to the Issuing Bank under this Clause 7.3 in respect of that Letter of Credit.
(e)
The obligations of each Lender or Borrower under this Clause 7.3 are continuing obligations and will extend to the ultimate balance of sums payable by that Lender or Borrower in respect of any Letter of Credit, regardless of any intermediate payment or discharge in whole or in part.
(f)
The obligations of any Lender or Borrower under this Clause 7.3 will not be affected by any act, omission, matter or thing which, but for this Clause 7.3, would reduce, release or prejudice any of its obligations under this Clause 7.3 (without limitation and whether or not known to it or any other person) including:
(i)
any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under a Letter of Credit or any other person;
(ii)
the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Restricted Group;
(iii)
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, any beneficiary under a Letter of Credit or other person or 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;
(iv)
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor, any beneficiary under a Letter of Credit or any other person;
(v)
any amendment (however fundamental) or replacement of a Finance Document, any Letter of Credit or any other document or security;
(vi)
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any Letter of Credit or any other document or security; or
(vii)
any insolvency or similar proceedings.
7.4
Cash collateral by Non-Acceptable L/C Lender

 
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(a)
If, at any time, a Lender is a Non-Acceptable L/C Lender, the Issuing Bank may, by notice to that Lender, request that Lender to pay and that Lender shall pay, on or prior to the date falling three (3) Business Days after the request by the Issuing Bank, an amount equal to that Lender's L/C Proportion of the outstanding amount of a Letter of Credit and in the currency of that Letter of Credit to an interest-bearing account held in the name of that Lender with the Issuing Bank.
(b)
The Non-Acceptable L/C Lender to whom a request has been made in accordance with paragraph (a) above shall enter into a security document or other form of collateral arrangement over the account, in form and substance satisfactory to the Issuing Bank, as collateral for any amounts due and payable under the Finance Documents by that Lender to the Issuing Bank in respect of that Letter of Credit.
(c)
Until no amount is or may be outstanding under that Letter of Credit, withdrawals from the account may only be made to pay to the Issuing Bank amounts due and payable to the Issuing Bank by the Non-Acceptable L/C Lender under the Finance Documents in respect of that Letter of Credit.
(d)
Each Lender shall notify the Agent and the Parent:
(i)
on the date of this Agreement or on any later date on which it becomes such a Lender in accordance with Clause 2.2 (Increase) or Clause 30 (Changes to the Lenders) whether it is a Non-Acceptable L/C Lender; and
(ii)
as soon as practicable upon becoming aware of the same, that it has become a Non-Acceptable L/C Lender,
and an indication in Schedule 1 (The Original Parties), in a Transfer Certificate, in an Assignment Agreement or in an Increase Confirmation to that effect will constitute a notice under paragraph (d)(i) to the Agent and, upon delivery in accordance with Clause 30.7 (Copy of Transfer Certificate or Assignment Agreement to Parent), to the Parent.
(e)
Any notice received by the Agent pursuant to paragraph (d) above shall constitute notice to the Issuing Bank of that Lender's status and the Agent shall, upon receiving each such notice, promptly notify the Issuing Bank of that Lender's status as specified in that notice.
(f)
If a Lender who has provided cash collateral in accordance with this Clause 7.4:
(i)
ceases to be a Non-Acceptable L/C Lender; and
(ii)
no amount is due and payable by that Lender in respect of a Letter of Credit,
that Lender may, at any time it is not a Non-Acceptable L/C Lender, by notice to the Issuing Bank request that an amount equal to the amount of the cash provided by it as collateral in respect of that Letter of Credit (together with any accrued interest) standing to the credit of the relevant account held with the

 
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Issuing Bank be returned to it and the Issuing Bank shall pay that amount to the Lender within three (3) Business Days after the request from the Lender (and shall cooperate with the Lender in order to procure that the relevant security or collateral arrangement is released and discharged).
(g)
For the purposes of this Clause 7.4, each Party to this Agreement acknowledges that each 2015 Effective Date Lender and DNB (UK) Limited is at all times an Acceptable Bank and shall not, at any time, be deemed to be a Non-Acceptable L/C Lender.
7.5
Cash cover by Borrower
(a)
If a Lender which is a Non-Acceptable L/C Lender fails to provide cash collateral (or notifies the Issuing Bank that it will not provide cash collateral) in accordance with Clause 7.4 (Cash collateral by Non-Acceptable L/C Lender) and the Issuing Bank notifies the Obligors' Agent (with a copy to the Agent) that it requires the Borrower of the relevant Letter of Credit or proposed Letter of Credit to provide cash cover to an account with the Issuing Bank in an amount equal to that Lender's L/C Proportion of the outstanding amount of that Letter of Credit and in the currency of that Letter of Credit then that Borrower shall do so within three (3) Business Days after the notice is given.
(b)
Notwithstanding paragraph (d) of Clause 1.2 (Construction), the Issuing Bank may agree to the withdrawal of amounts up to the level of that cash cover from the account if:
(i)
it is satisfied that the relevant Lender is no longer a Non-Acceptable L/C Lender;
(ii)
the relevant Lender's obligations in respect of the relevant Letter of Credit are transferred to a New Lender in accordance with the terms of this Agreement; or
(iii)
an Increase Lender has agreed to undertake the obligations in respect of the relevant Lender's L/C Proportion of the Letter of Credit.
(c)
To the extent that a Borrower has complied with its obligations to provide cash cover in accordance with this Clause 7.5, the relevant Lender's L/C Proportion in respect of that Letter of Credit will remain (but that Lender's obligations in relation to that Letter of Credit may be satisfied in accordance with paragraph (d)(ii) of Clause 1.2 (Construction)). However, the relevant Borrower's obligation to pay any Letter of Credit fee in relation to the relevant Letter of Credit to the Agent (for the account of that Lender) in accordance with paragraph (b) of Clause 17.4 (Fees payable in respect of Letters of Credit) will be reduced proportionately as from the date on which it complies with that obligation to provide cash cover (and for so long as the relevant amount of cash cover continues to stand as collateral).

 
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(d)
The relevant Issuing Bank shall promptly notify the Agent of the extent to which a Borrower provides cash cover pursuant to this Clause 7.5 and of any change in the amount of cash cover so provided.
7.6
Rights of contribution
No Obligor will be entitled to any right of contribution or indemnity from any Finance Party in respect of any payment it may make under this Clause 7.
8.
OPTIONAL CURRENCIES
8.1
Selection of currency
A Borrower (or the Parent on its behalf) shall select the currency of a Utilisation in a Utilisation Request.
8.2
Unavailability of a currency
If before the Specified Time on any Quotation Day:
(a)
a Lender notifies the Agent that the Optional Currency requested is not readily available to it in the amount required; or
(b)
a Lender notifies the Agent that compliance with its obligation to participate in a Loan in the proposed Optional Currency would contravene a law or regulation applicable to it,
the Agent will give notice to the relevant Borrower or Parent to that effect by the Specified Time on that day. In this event, any Lender that gives notice pursuant to this Clause 8.2 will be required to participate in the Loan in the Base Currency (in an amount equal to that Lender's proportion of the Base Currency Amount, or in respect of a Rollover Loan, an amount equal to that Lender's proportion of the Base Currency Amount of the Rollover Loan that is due to be made) and its participation will be treated as a separate Loan denominated in the Base Currency during that Interest Period.
8.3
Agent's calculations
Each Lender's participation in a Loan will be determined in accordance with paragraph (b) of Clause 5.4 (Lenders' participation).
9.
ANCILLARY FACILITIES
9.1
Type of Facility
An Ancillary Facility may be by way of:
(a)
an overdraft facility;
(b)
a guarantee, bonding, documentary or stand-by letter of credit facility;
(c)
a short term loan facility;

 
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(d)
a derivatives facility;
(e)
a foreign exchange facility; or
(f)
any other facility or accommodation required in connection with the business of the Restricted Group and which is agreed by the Parent with an Ancillary Lender.
9.2
Availability
(a)
If the Parent and a Lender agree and except as otherwise provided in this Agreement, the Lender may provide an Ancillary Facility on a bilateral basis in place of all or part of that Lender's unutilised Commitment (which shall (except for the purposes of determining the Majority Lenders and of Clause 42.4 (Replacement of Lender)) be reduced by the amount of the Ancillary Commitment under that Ancillary Facility).
(b)
An Ancillary Facility shall not be made available unless, not later than five (5) Business Days prior to the Ancillary Commencement Date for an Ancillary Facility, the Agent has received from the Parent:
(i)
a notice in writing of the establishment of an Ancillary Facility and specifying:
(A)
the proposed Borrower(s) which may use the Ancillary Facility;
(B)
the proposed Ancillary Commencement Date and expiry date of the Ancillary Facility;
(C)
the proposed type of Ancillary Facility to be provided;
(D)
the proposed Ancillary Lender;
(E)
the proposed Ancillary Commitment, the maximum amount of the Ancillary Facility and, if the Ancillary Facility is an overdraft facility comprising more than one account its maximum gross amount (that amount being the "Designated Gross Amount") and its maximum net amount (that amount being the "Designated Net Amount");
(F)
the proposed currency;
(G)
the purpose of the Ancillary Facility to be provided; and
(H)
any other information which the Agent may reasonably request in connection with the Ancillary Facility.
The Agent shall promptly notify the Ancillary Lender and the other Lenders of the establishment of an Ancillary Facility.
No amendment or waiver of a term of any Ancillary Facility shall require the consent of any Finance Party other than the relevant Ancillary Lender unless

 
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such amendment or waiver itself relates to or gives rise to a matter which would require an amendment of or under this Agreement (including, for the avoidance of doubt, under this Clause 9). In such a case, the provisions of this Agreement with regard to amendments and waivers will apply.
(c)
Subject to compliance with paragraph (b) above:
(i)
the Lender concerned will become an Ancillary Lender; and
(ii)
the Ancillary Facility will be available,
with effect from the date agreed by the Parent and the Ancillary Lender.
9.3
Terms of Ancillary Facilities
(a)
Except as provided below, the terms of any Ancillary Facility will be those agreed by the Ancillary Lender and the Parent.
(b)
However, those terms:
(i)
must be based upon normal commercial terms at that time (except as varied by this Agreement);
(ii)
may allow only Borrowers (or Affiliates of Borrowers nominated pursuant to Clause 9.9 (Affiliates of Borrowers)) to use the Ancillary Facility;
(iii)
may not allow the Ancillary Outstandings to exceed the Ancillary Commitment;
(iv)
may not allow the Ancillary Commitment of a Lender to exceed the Available Commitment of that Lender (excluding for these purposes any reduction in the Available Commitments attributable to such Ancillary Commitment); and
(v)
must require that the Ancillary Commitment is reduced to nil, and that all Ancillary Outstandings are repaid (or cash cover provided in respect of all the Ancillary Outstandings) not later than the Termination Date (or such earlier date as the Commitment of the relevant Ancillary Lender is reduced to zero).
(c)
If there is any inconsistency between any term of an Ancillary Facility and any term of this Agreement, this Agreement shall prevail except for (i) Clause 39.3 (Day count convention) which shall not prevail for the purposes of calculating fees, interest or commission relating to an Ancillary Facility; (ii) an Ancillary Facility comprising more than one account where the terms of the Ancillary Documents shall prevail to the extent required to permit the netting of balances on those accounts; and (iii) where the relevant term of this Agreement would be contrary to, or inconsistent with, the law governing the relevant Ancillary Document, in which case that term of this Agreement shall not prevail.

 
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(d)
Interest, commission and fees on Ancillary Facilities are dealt with in Clause 17.5 (Interest, commission and fees on Ancillary Facilities).
9.4
Repayment of Ancillary Facility
(a)
An Ancillary Facility shall cease to be available on the Termination Date or such earlier date on which its expiry date occurs or on which it is cancelled in accordance with the terms of this Agreement.
(b)
If an Ancillary Facility expires or is cancelled (in whole or in part) in accordance with its terms or by agreement between the parties thereto, the Ancillary Commitment of the Ancillary Lender shall be reduced accordingly (and its Commitment shall be increased accordingly).
(c)
No Ancillary Lender may demand repayment or prepayment of any amounts or demand cash cover for any liabilities made available or incurred by it under its Ancillary Facility (except where the Ancillary Facility is provided on a net limit basis to the extent required to bring any gross outstandings down to the net limit) unless:
(i)
the Total Commitments have been cancelled in full, or all outstanding Utilisations have become due and payable in accordance with the terms of this Agreement, or the Agent has declared all outstanding Utilisations immediately due and payable, or the expiry date of the Ancillary Facility occurs; or
(ii)
it becomes unlawful in any applicable jurisdiction for the Ancillary Lender to perform any of its obligations as contemplated by this Agreement or to fund, issue or maintain its participation in its Ancillary Facility; or
(iii)
the Ancillary Outstandings (if any) under that Ancillary Facility can be refinanced by a Utilisation and the Ancillary Lender gives sufficient notice to enable a Utilisation to be made to refinance those Ancillary Outstandings.
(d)
For the purposes of determining whether or not the Ancillary Outstandings under an Ancillary Facility mentioned in paragraph (c)(iii) above can be refinanced by a Utilisation:
(i)
Commitment of the Ancillary Lender will be increased by the amount of its Ancillary Commitment; and
(ii)
the Utilisation may (so long as paragraph (c)(i) above does not apply) be made irrespective of whether a Default is outstanding or any other applicable condition precedent is not satisfied (but only to the extent that the proceeds are applied in refinancing those Ancillary Outstandings) and irrespective of whether Clause 4.4 (Maximum number of Utilisations) or paragraph (a)(ii) of Clause 5.2 (Completion of a Utilisation Request for Loans) applies.

 
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(e)
On the making of a Utilisation to refinance Ancillary Outstandings:
(i)
each Lender will participate in that Utilisation in an amount (as determined by the Agent) which will result as nearly as possible in the aggregate amount of its participation in the Utilisations then outstanding bearing the same proportion to the aggregate amount of the Utilisations then outstanding as its Commitment bears to the Total Commitments; and
(ii)
the relevant Ancillary Facility shall be cancelled to the extent of such refinancing.
(f)
In relation to an Ancillary Facility which comprises an overdraft facility where a Designated Net Amount has been established, the Ancillary Lender providing that Ancillary Facility shall only be obliged to take into account for the purposes of calculating compliance with the Designated Net Amount those credit balances which it is permitted to take into account by the then current law and regulations in relation to its reporting of exposures to applicable regulatory authorities as netted for capital adequacy purposes.
9.5
Ancillary Outstandings
Each Borrower and each Ancillary Lender agrees with and for the benefit of each Lender that:
(a)
the Ancillary Outstandings under any Ancillary Facility provided by that Ancillary Lender shall not exceed the Ancillary Commitment applicable to that Ancillary Facility and where the Ancillary Facility is an overdraft facility comprising more than one account, Ancillary Outstandings under that Ancillary Facility shall not exceed the Designated Net Amount in respect of that Ancillary Facility; and
(b)
where all or part of the Ancillary Facility is an overdraft facility comprising more than one account, the Ancillary Outstandings (calculated on the basis that the words in brackets starting 'net of' and ending 'under that Ancillary Facility' of the definition of that term were deleted) shall not exceed the Designated Gross Amount applicable to that Ancillary Facility.
9.6
Adjustment for Ancillary Facilities upon acceleration
(a)
In this Clause 9.6:
"Outstandings" means, in relation to a Lender, the aggregate in the Base Currency of (i) its participation in each Utilisation then outstanding (together with the aggregate amount of all accrued interest, fees and commission owed to it as a Lender), and (ii) if the Lender is also an Ancillary Lender, the Ancillary Outstandings in respect of Ancillary Facilities provided by that Ancillary Lender (together with the aggregate amount of all accrued interest, fees and commission owed to it as an Ancillary Lender in respect of the Ancillary Facility).
"Total Outstandings" means the aggregate of all Outstandings.

 
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(b)
If a notice is served under paragraphs (i), (ii) or (iv) of Clause 28.19 (Acceleration) each Lender and each Ancillary Lender shall promptly adjust by corresponding transfers (to the extent necessary) their claims in respect of amounts outstanding to them under the Facility and each Ancillary Facility to ensure that after such transfers the Outstandings of each Lender under the Facility bear the same proportion to the Total Outstandings as such Lender's Commitment bears to the Total Commitments, each as at the date such notice is served under Clause 28.19 (Acceleration).
(c)
If an amount outstanding under an Ancillary Facility is a contingent liability and that contingent liability becomes an actual liability or is reduced to zero after the original adjustment is made under paragraph (b) above, then each Lender and Ancillary Lender will make a further adjustment by corresponding transfers (to the extent necessary) to put themselves in the position they would have been in had the original adjustment been determined by reference to the actual liability or, as the case may be, zero liability and not the contingent liability.
(d)
Prior to the application of the provisions of paragraph (b) of this Clause 9.6, an Ancillary Lender that has provided an overdraft comprising more than one account under an Ancillary Facility shall set-off any liabilities owing to it under such overdraft facility against credit balances on any account comprised in such overdraft facility.
(e)
All calculations to be made pursuant to this Clause 9.6 shall be made by the Agent based upon information provided to it by the Lenders and Ancillary Lenders.
9.7
Information
Each Borrower and each Ancillary Lender shall, promptly upon request by the Agent, supply the Agent with any information relating to the operation of an Ancillary Facility (including the Ancillary Outstandings) as the Agent may reasonably request from time to time. Each Borrower consents to all such information being released to the Agent and the other Finance Parties.
9.8
Affiliates of Lenders as Ancillary Lenders
(a)
Subject to the terms of this Agreement, an Affiliate of a Lender may become an Ancillary Lender. In such case, (other than for the purposes of Clause 18 (Tax gross up and indemnities)) the Lender and its Affiliate shall be treated as a single Lender whose Commitment is the amount set out opposite the relevant Lender's name in Part II of Schedule 1 (The Original Parties) and/or the amount of any Commitment transferred to or assumed by that Lender under this Agreement, to the extent (in each case) not cancelled, reduced or transferred by it under this Agreement. For the purposes of calculating the Lender's Available Commitment, the Lender's Commitment shall be reduced to the extent of the aggregate of the Ancillary Commitments of its Affiliates.
(b)
The Parent shall specify any relevant Affiliate of a Lender in any notice delivered by the Parent to the Agent pursuant to paragraph (b)(i) of Clause 9.2 (Availability).

 
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(c)
An Affiliate of a Lender which becomes an Ancillary Lender shall accede to the Intercreditor Agreement as an Ancillary Lender and any person which so accedes to the Intercreditor Agreement shall, at the same time, become a party to this Agreement as an Ancillary Lender in accordance with clause 19.11 (New Ancillary Lender) of the Intercreditor Agreement.
(d)
If a Lender assigns all of its rights and benefits or transfers all of its rights and obligations to a New Lender (as defined in Clause 29 (Changes to the Lenders)), its Affiliate shall cease to have any obligations under this Agreement or any Ancillary Document.
(e)
Where this Agreement or any other Finance Document imposes an obligation on an Ancillary Lender and the relevant Ancillary Lender is an Affiliate of a Lender which is not a party to that document, the relevant Lender shall ensure that the obligation is performed by its Affiliate.
9.9
Affiliates of Borrowers
(a)
Subject to the terms of this Agreement:
(i)
(for the purpose of any cash management program (including, without limitation, any zero balance cash pooling arrangement) to which an existing Borrower and the Affiliate of such Borrower is also a party) an Affiliate of a Borrower; and
(ii)
an Affiliate of a Borrower which is incorporated in the same jurisdiction as an existing Borrower,
may with the approval of the relevant Lender become a Borrower with respect to an Ancillary Facility.
(b)
The Parent shall specify any relevant Affiliate of a Borrower in any notice delivered by the Parent to the Agent pursuant to paragraph (b)(i) of Clause 9.2 (Availability).
(c)
If a Borrower ceases to be a Borrower under this Agreement in accordance with Clause 32.3 (Resignation of a Borrower), its Affiliate shall cease to have any rights under this Agreement or any Ancillary Document.
(d)
Where this Agreement or any other Finance Document imposes an obligation on a borrower under an Ancillary Facility and the relevant borrower is an Affiliate of a Borrower which is not a party to that document, the relevant Borrower shall ensure that the obligation is performed by its Affiliate.
(e)
Any reference in this Agreement or any other Finance Document to a Borrower being under no obligations (whether actual or contingent) as a Borrower under such Finance Document shall be construed to include a reference to any Affiliate of that Borrower being under no obligations under any Finance Document or Ancillary Document.

 
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9.10
Commitment amounts
Notwithstanding any other term of this Agreement, each Lender shall ensure that at all times its Commitment is not less than:
(a)
its Ancillary Commitment; and
(b)
the Ancillary Commitment of its Affiliate,
in each case, excluding for these purposes any reduction in such Lender's Commitment attributable to such Ancillary Commitment.
10.
REPAYMENT
10.1
Repayment of Loans
(a)
Each Borrower which has drawn a Loan shall repay that Loan on the last day of its Interest Period.
(b)
Each Borrower which has utilised a Letter of Credit which is then still outstanding shall repay that Letter of Credit on the Termination Date.
(c)
Without prejudice to each Borrower's obligation under paragraph (a) above, if one or more Loans are to be made available to a Borrower:
(i)
on the same day that a maturing Loan is due to be repaid by that Borrower;
(ii)
in the same currency as the maturing Loan; and
(iii)
in whole or in part for the purpose of refinancing the maturing Loan;
the aggregate amount of the new Loans shall be treated as if applied in or towards repayment of the maturing Loan so that:
(A)
if the amount of the maturing Loan exceeds the aggregate amount of the new Loans:
(1)
the relevant Borrower will only be required to pay an amount in cash equal to that excess; and
(2)
each Lender's participation (if any) in the new Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation (if any) in the maturing Loan and that Lender will not be required to make its participation in the new Loans available in cash; and

 
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(B)
if the amount of the maturing Loan is equal to or less than the aggregate amount of the new Loans:
(1)
the relevant Borrower 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 (if any) in the new Loans exceeds that Lender's participation (if any) in the maturing Loan and the remainder of that Lender's participation in the new Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation in the maturing Loan.
(d)
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.
(e)
A Borrower to whom a Separate Loan is outstanding may prepay that Separate Loan by giving five (5) Business Days prior notice to the Agent. The Agent will forward a copy of a prepayment notice received in accordance with this paragraph (e) to the Defaulting Lender concerned as soon as practicable on receipt.
(f)
Interest in respect of a Separate Loan will accrue for successive Interest Periods selected by the Borrower by the time and date specified by the Agent (acting reasonably) and will be payable by that Borrower to the Defaulting Lender on the last day of each Interest Period of that Separate Loan.
(g)
The terms of this Agreement relating to Loans generally shall continue to apply to Separate Loans other than to the extent inconsistent with paragraphs (d) to (f) above, in which case those paragraphs shall prevail in respect of any Separate Loan.
11.
ILLEGALITY, VOLUNTARY PREPAYMENT AND CANCELLATION
11.1
Illegality
If after the date of this Agreement (or, if later, the date the relevant Lender becomes a Party) it becomes unlawful in any applicable jurisdiction for a Lender to perform any of its obligations as contemplated by this Agreement or to fund, issue or maintain its participation in any Utilisation:
(a)
that Lender, shall promptly notify the Agent upon becoming aware of that event;
(b)
upon the Agent notifying the Parent, the Commitment of that Lender will be immediately cancelled; and

 
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(c)
each Borrower shall repay that Lender's participation in the Utilisations made to that Borrower on the last day of the Interest Period for each Utilisation occurring after the Agent has notified the Parent or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law).
11.2
Illegality in relation to Issuing Bank
If after the date of this Agreement (or, if later, the date on which the relevant Letter of Credit is issued) it becomes unlawful for an Issuing Bank to issue or leave outstanding any Letter of Credit, then:
(a)
that Issuing Bank shall promptly notify the Agent upon becoming aware of that event;
(b)
upon the Agent notifying the Parent, the Issuing Bank shall not be obliged to issue any Letter of Credit;
(c)
to the extent it would be unlawful for any such Letter of Credit to remain outstanding, the Parent shall procure that the relevant Borrower shall use all reasonable endeavours to procure the release of each Letter of Credit issued by that Issuing Bank and outstanding at such time; and
(d)
until any other Lender has agreed to be an Issuing Bank pursuant to the terms of this Agreement, Facility A shall cease to be available for the issue of Letters of Credit.
11.3
Voluntary cancellation
The Parent may, if it gives the Agent not less than five (5) Business Days (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of £1,000,000 and an integral multiple of £1,000,000) of the Available Facility. Any cancellation under this Clause 11.3 shall reduce the Commitments of the Lenders rateably under that Facility.
11.4
Voluntary prepayment of Utilisations
A Borrower to which a Utilisation has been made may, if it or the Parent gives the Agent not less than five (5) Business Days (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of that Utilisation (but, if in part, being an amount that reduces that Utilisation by a minimum amount of £1,000,000 and an integral multiple of £1,000,000).
11.5
Right of cancellation and repayment in relation to a single Lender or Issuing Bank
(a)
If: