EX-10.2 3 d181309dex102.htm EX-10.2 EX-10.2

EXHIBIT 10.2

LOGO

Dated 1 October 2021

Revolving Facility Agreement

between

Expro Group Holdings N.V. (formerly known as Frank’s International N.V.)

as Parent

DNB (UK) Limited

as Arranger

DNB Bank ASA, London Branch

as Agent and as Security Agent

and others

White & Case LLP

5 Old Broad Street

London EC2N 1DW

 


Table of Contents

 

          Page  

1.

   Definitions and Interpretation      2  

2.

   The Facilities      52  

3.

   Purpose      56  

4.

   Conditions of Utilisation      56  

5.

   Utilisation - Loans      59  

6.

   Utilisation - Letters of Credit      60  

7.

   Letters of Credit      65  

8.

   Optional Currencies      70  

9.

   Establishment of Incremental Facilities      70  

10.

   Repayment      76  

11.

   Illegality, Voluntary Prepayment and Cancellation      77  

12.

   Mandatory Prepayment and Cancellation      79  

13.

   Restrictions      82  

14.

   Interest      86  

15.

   Interest Periods      87  

16.

   Changes to the Calculation of Interest      88  

17.

   Fees      90  

18.

   Tax Gross Up and Indemnities      92  

19.

   Increased Costs      102  

20.

   Other Indemnities      104  

21.

   Mitigation by the Lenders      105  

22.

   Costs and Expenses      106  

23.

   Guarantee and Indemnity      108  

24.

   Representations      114  

25.

   Information Undertakings      124  

26.

   Financial Covenants      130  

27.

   General Undertakings      135  

28.

   Events of Default      147  

29.

   Changes to the Lenders      153  

30.

   Prohibition on Debt Purchase Transactions by the Group      159  

31.

   Changes to the Obligors      159  

32.

   Role of the Agent, the Arranger, the Fronting Bank and Others      163  

33.

   Conduct of Business by the Finance Parties      172  

34.

   Sharing Among the Finance Parties      172  

35.

   Payment Mechanics      174  

36.

   Set-off      177  

 

(i)


37.

   Notices      178  

38.

   Calculations and Certificates      180  

39.

   Partial Invalidity      180  

40.

   Remedies and Waivers      180  

41.

   Amendments and Waivers      180  

42.

   Confidential Information      191  

43.

   Confidentiality of Funding Rates and Reference Bank Quotations      195  

44.

   Disclosure of Lender Details by Agent      196  

45.

   Counterparts      198  

46.

   Governing Law      199  

47.

   Enforcement      199  

48.

   Australian PPSA      199  

49.

   Bail-In      200  

50.

   QFC      202  

Schedule 1

   The Original Parties      203  

Part 1

   The Original Obligors      203  

Part 2

   The Original Lenders - Other Than UK Non-Bank Lenders      206  

Part 3

   The Original Lenders - UK Non-Bank Lenders      207  

Schedule 2

   Conditions Precedent      208  

Part 1

   Conditions Precedent to first Utilisation      208  

Part 2

   Conditions Precedent Required to be Delivered by an Additional Obligor      214  

Part 3

   Transaction Security Documents      218  

Schedule 3

   Requests and Notices      221  

Part 1

   Utilisation Request Loans      221  

Part 2

   Utilisation Request Letters of Credit      222  

Part 3

   Selection Notice      223  

Schedule 4

   Form of Transfer Certificate      224  

Schedule 5

   Form of Assignment Agreement      227  

Schedule 6

   Form of Accession Deed      231  

Schedule 7

   Form of Resignation Letter      237  

Schedule 8

   Form of Compliance Certificate      238  

Schedule 9

   Timetables      240  

Part 1

   Loans      240  

Part 2

   Letters of Credit      242  

Schedule 10

   Form of Letter of Credit      243  

Schedule 11

   Agreed Security Principles      246  

1.

   Scope of Security      246  

2.

   General Principles      246  

3.

   Guarantors and Security      248  

4.

   Governing Law and Scope      249  

5.

   Terms of Transaction Security Documents and Guarantees      250  

 

(ii)


6.

   Bank Accounts      251  

7.

   Shares      252  

8.

   Intercompany Receivables      253  

9.

   Release of Security      254  

Schedule 12

   Form of Increase Confirmation      255  

Schedule 13

   Form of Incremental Facility Notice      258  

Schedule 14

   Form of Incremental Facility Lender Certificate      263  

Schedule 15

   Existing Guarantees      265  

Schedule 16

   Rolled Letters of Credit      266  

Schedule 17

   Form of Substitute Affiliate Lender Designation Notice      268  

Schedule 18

   Reference Rate Terms      270  

Part 1

   Dollars      270  

Part 2

   Sterling      274  

Schedule 19

   Daily Non-Cumulative Compounded RFR Rate      277  

Schedule 20

   Cumulative Compounded RFR Rate      279  

 

 

(iii)


This Agreement is dated 1 October 2021 and made

Between:

Expro Group Holdings N.V. (formerly known as Frank’s International N.V.), a company incorporated and existing under the laws of the Netherlands with registered number 34241787 (the “Parent”);

The Subsidiaries of the Parent listed in Part 1 of Schedule 1 (The Original Parties) as original borrowers (the “Original Borrowers”);

The Subsidiaries of the Parent listed in Part 1 of Schedule 1 (The Original Parties) as original guarantors (together with the Parent, the “Original Guarantors”);

DNB (UK) Limited as arranger the (“Arranger”);

The Financial Institutions listed in Part 2 and Part 3 of Schedule 1 (The Original Parties) as lenders (the “Original Lenders”);

DNB Bank ASA, London Branch as agent of the other Finance Parties (the “Agent”);

DNB Bank ASA, London Branch as security trustee and security agent for the Secured Parties (the “Security Agent”); and

DNB Bank ASA, London Branch (the “Original Fronting Bank”).

It is agreed as follows:

Section 1

Interpretation

 

1.

Definitions and Interpretation

 

1.1

Definitions

In this Agreement:

Acceptable Bank” means:

 

  (a)

a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of BBB or higher by Standard & Poor’s Rating Services or Fitch Ratings Ltd or Baa2 or higher by Moody’s Investors Service Limited or a comparable rating from an internationally recognised credit rating agency;

 

  (b)

DNB (UK) Limited, any Lender or any of their Affiliates; or

 

  (c)

any other bank or financial institution approved by the Agent.

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 in the jurisdiction of incorporation or establishment of the relevant member of the Group, including IFRS.

Accounting Reference Date” means 31 December.

Additional Borrower” means a company which becomes an Additional Borrower in accordance with Clause 31 (Changes to the Obligors).

Additional Business Day” means any day specified as such in the applicable Reference Rate Terms.

 

2


Additional Guarantor” means a company which becomes an Additional Guarantor in accordance with Clause 31 (Changes to the Obligors).

Additional Obligor” means an Additional Borrower or an Additional Guarantor.

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. Notwithstanding the foregoing, in relation to any member of the NatWest Group, the term “Affiliate” 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) and which are not part of NatWest Group plc and its subsidiaries or subsidiary undertakings..

For the purposes of this definition, “NatWest Group” means NatWest Group plc and its subsidiaries and subsidiary undertakings.

Agents Spot Rate of Exchange” means:

 

  (a)

the Agent’s spot rate of exchange; or

 

  (b)

(if the Agent does not have an available spot rate of exchange) any other publicly available spot rate of exchange selected by the Agent (acting reasonably),

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.

Aggregate Total Incremental Facility Commitments” means, at any time, the aggregate of the Total Incremental Facility Commitments relating to each Incremental Facility.

Aggregate Yield” has the meaning given to that term in Clause 9.4 (Restrictions on Incremental Facility Terms and fees).

Agreed Security Principles” means the principles set out in Schedule 11 (Agreed Security Principles).

Annual Financial Statements” has the meaning given to that term in Clause 25 (Information Undertakings).

Anti-Corruption Laws” has the meaning given to such term in Clause 24.18 (Anti-Corruption Laws).

Assets” means, in relation to a member of the Group, the aggregate of all:

 

  (a)

Cash;

 

  (b)

inventory;

 

  (c)

trade and other receivables;

 

  (d)

property, plant and equipment,

which, in each case (other than in respect of Cash), is being calculated in accordance with the applicable Accounting Principles and reflected in the respective financial statements of such member of the Group.

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 Accession Undertaking as defined in, and for the purposes of, the Intercreditor Agreement.

 

3


Australian Borrower means any Borrower incorporated, established or tax resident in Australia.

Australian Consolidated Tax Group” means a consolidated group or a multiple entry consolidated group as defined in, and for the purposes of, Part 3-90 of the Australian Tax Act.

Australian GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Australian GST Group” has the meaning given to the term “GST group” in the Australian GST Act.

Australian Obligor means any Obligor incorporated, established or tax resident in Australia.

Australian PPSA” means Personal Property Securities Act 2009 (Cth) and any regulations in force at any time under that act, including the Personal Property Securities Regulations 2010 (Cth).

Australian PPSR” means the personal property securities register established under the Australian PPSA.

Australian Tax Act” means the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth), jointly, as applicable.

Australian Tax Funding Agreement” means any agreement whereby members of an Australian Consolidated Tax Group have made provision for the funding of the tax liabilities of the Australian Consolidated Tax Group.

Australian Tax Sharing Agreement” means any agreement which satisfies the requirements in Section 721-25 of the Australian Tax Act for being a valid tax sharing agreement with respect to the members of an Australian Consolidated Tax Group.

Authorisation” means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration.

Authorised Officer” means any individual who is authorised to act on behalf of the relevant company by its constitutional documents and/or resolution of the board of directors or any other authorised body, and/or a power of attorney where applicable.

Availability Period” means:

 

  (a)

in relation to Facility A and Facility B, the period from and including the date of this Agreement to and including:

 

  (i)

if the first Utilisation Date has occurred, date falling one Month prior to the Termination Date applicable to Facility A and Facility B; and

 

  (ii)

if the first Utilisation Date has not occurred, 29 October 2021; and

 

  (b)

in relation to any Incremental Facility, the period specified as such in the Incremental Facility Notice relating to that Incremental Facility.

Available Commitment” means, in relation to a Facility, a Lender’s Commitment under that Facility minus (subject as set out below):

 

  (a)

the Base Currency Amount of its participation in any outstanding Utilisations under that Facility; and

 

4


  (b)

in relation to any proposed Utilisation, the Base Currency Amount of its participation in any other Utilisations that are due to be made under that Facility on or before the proposed Utilisation Date.

For the purposes of calculating a Lender’s Available Commitment in relation to any proposed Utilisation under a Facility, that Lender’s participation in any Utilisations that are due to be repaid or prepaid on or before the proposed Utilisation Date shall not be deducted from that Lender’s Commitment.

Available Facility” means, in relation to a Facility, the aggregate for the time being of each Lender’s Available Commitment in respect of that Facility.

Base Currency” means US Dollars.

Base Currency Amount” means 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 6.9 (Revaluation of Letters of Credit), as adjusted to reflect any repayment or prepayment of a Utilisation.

Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

Borrower” means an Original Borrower or an Additional Borrower unless it has ceased to be a Borrower in accordance with Clause 31 (Changes to the Obligors).

Borrowings” has the meaning given to that term in Clause 26.1 (Financial Definitions).

Break Costs” means

 

  (a)

in respect of any Term Rate Loan, the amount (if any) by which:

 

  (i)

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 in that currency 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:

 

  (ii)

the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period, or

 

  (b)

in respect of any Compounded Rate Loan, any amount specified as such in the applicable Reference Rate Terms.

Budget” means:

 

  (a)

in relation to the period ending on 31 December 2021, the budget in agreed form to be delivered by the Parent to the Agent pursuant to Clause 4.1 (Initial Conditions Precedent); and

 

5


  (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 New York:

 

  (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;

 

  (b)

(in relation to any date for payment or purchase of euro) any TARGET Day; and

 

  (c)

(in relation to:

 

  (i)

any date for payment or purchase of an amount relating to a Compounded Rate Loan; or

 

  (ii)

the determination of the first day or the last day of an Interest Period for a Compounded Rate Loan, or otherwise in relation to the determination of the length of such an Interest Period),

which is an Additional Business Day relating to that Loan or Unpaid Sum.

Capital Expenditure” has the meaning given to that term in Clause 26.1 (Financial Definitions).

Cash” means, at any time, cash denominated in any official currency of the Original Jurisdiction of a member of the Group in hand or at bank and (in the latter case) credited to an account in the name of a member of the Group and to which a member of the Group is alone (or together with other members of the Group) beneficially entitled and for so long as:

 

  (a)

that cash is repayable on demand;

 

  (b)

repayment of that cash is not contingent on the prior discharge of any other indebtedness of any member of the Group or of any other person whatsoever or on the satisfaction of any other condition;

 

  (c)

there is no Security over that cash except for Transaction Security or any Permitted Security constituted by a netting or set-off arrangement entered into by members of the Group in the ordinary course of their banking arrangements; and

 

  (d)

the cash is freely and immediately available (A) to be used for any cross-border payments; and (B) to be applied in repayment or prepayment of the Facilities.

Cash Equivalent Investments” means at any time:

 

  (a)

certificates of deposit maturing within one year after the relevant date of calculation and issued by an Acceptable Bank;

 

  (b)

any investment in marketable debt obligations issued or guaranteed by the government of the United States of America, the United Kingdom, any member state of the European Economic Area or any Participating Member State or by an instrumentality or agency of any of them having an equivalent credit rating, maturing within one year after the relevant date of calculation and not convertible or exchangeable to any other security;

 

  (c)

commercial paper not convertible or exchangeable to any other security:

 

  (i)

for which a recognised trading market exists;

 

6


  (ii)

issued by an issuer incorporated in the United States of America, the United Kingdom, any member state of the European Economic Area or any Participating Member State;

 

  (iii)

which matures within one year after the relevant date of calculation; and

 

  (iv)

which has a credit rating of either A-1 or higher by Standard & Poor’s Rating Services or F1 or higher by Fitch Ratings Ltd or P-1 or higher by Moody’s Investors Service Limited, or, if no rating is available in respect of the commercial paper, the issuer of which has, in respect of its long-term unsecured and non-credit enhanced debt obligations, an equivalent rating;

 

  (d)

sterling bills of exchange eligible for rediscount at the Bank of England and accepted by an Acceptable Bank (or their dematerialised equivalent);

 

  (e)

any investment in money market funds which:

 

  (i)

have a credit rating of either A-1 or higher by Standard & Poor’s Rating Services or F1 or higher by Fitch Ratings Ltd or P-1 or higher by Moody’s Investors Service Limited; and

 

  (ii)

invest substantially all their assets in securities of the types described in paragraphs (a) to (d) above

to the extent that investment can be turned into Cash on not more than 30 days’ notice; or

 

  (f)

any other debt security approved by the Majority Lenders,

in each case, denominated in any official currency of the Original Jurisdiction of a member of the Group and to which any member of the Group is alone (or together with other members of the Group) beneficially entitled at that time and which is not issued or guaranteed by any member of the Group or subject to any Security (other than Security arising under the Transaction Security Documents).

Cashflow” has the meaning given to that term in Clause 26.1 (Financial Definitions).

Cayman Share Pledges” means (a) the Cayman Islands law deed of charge entered into on or about the date of this Agreement between Expro Group Holdings N.V. (a public company with limited liability (naamloze vennootschap met beperkte aansprakelijkheid) under the laws of the Netherlands, registered with the Netherlands Commercial Register under number 34241787) as chargor and the Security Agent as chargee, over shares in New Eagle Holdings Limited; and (b) the New Eagle 2 Share Pledge.

Central Bank Rate” has the meaning given to that term in the applicable Reference Rate Terms.

Central Bank Rate Adjustment” has the meaning given to that term in the applicable Reference Rate Terms.

Certified Copy” means a copy of an original document which is certified by an Authorised Officer of the relevant Obligor to be a true copy of that document (which certification shall signify that the copy is a true, complete and accurate copy of the original document, and that the original document has not been amended or superseded after the date of its issue but prior to the date of its certification).

Change of Control” means

 

7


  (a)

any person or group of persons acting in concert who do not control the Group as of the date of this Agreement acquire (directly or indirectly) beneficially more than 30 per cent. of the issued voting share capital of the Parent where 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 and/or ownership of voting shares in the Parent, to obtain or consolidate control (directly or indirectly) of the Parent provided that the persons voting in the same or consistent manner at any general meeting of the Parent will not be considered to be acting in concert by virtue only of exercising their votes in such manner;

 

  (b)

the Parent ceasing to own and control all of the shares in Frank’s International LP B.V.;

 

  (c)

the Parent ceasing to own and control all of the shares in Frank’s International Partners B.V.;

 

  (d)

the Parent ceasing to own and control all of the shares in Blackhawk Group Holdings LLC; or

 

  (e)

the Parent ceasing to own and control all of the shares in New Eagle Holdings Limited.

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 of the first Utilisation under the Revolving Facility (whether under Facility A or Facility B).

Code” means the US Internal Revenue Code of 1986 as amended and the regulations promulgated and rulings issued thereunder.

Commitment” means a Facility A Commitment, Facility B Commitment or an Incremental Facility Commitment.

Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

Competitor List” means the list of unacceptable entities for the purpose of transfers, assignments, sub-participation and sub-contract of Utilisations pursuant to Clause 29 (Change to the Lenders), agreed between the Obligors’ Agent and the Arranger prior to the date of this Agreement, which list may be amended and/or supplemented from time to time by adding no more than five unacceptable entities which are a direct competitor of the Parent per Financial Year of the Parent, as identified in writing by the Obligors’ Agent and agreed with the Agent.

Compliance Certificate” means a certificate substantially in the form set out in Schedule 8 (Form of Compliance Certificate).

Compounded Rate Currency” means:

 

  (a)

sterling; and

 

  (b)

any other currency which is not a Term Rate Currency.

Compounded Rate Interest Payment” means the aggregate amount of interest that:

 

  (a)

is, or is Scheduled to become, payable under any Finance Document; and

 

  (b)

relates to a Compounded Rate Loan.

Compounded Rate Loan” means any Loan, or if applicable, Unpaid Sum which is not a Term Rate Loan.

 

8


Compounded Reference Rate” means, in relation to any RFR Banking Day during the Interest Period of a Compounded Rate Loan, the percentage rate per annum which is the aggregate of:

 

  (a)

the Daily Non-Cumulative Compounded RFR Rate for that RFR Banking Day; and

 

  (b)

the applicable Credit Adjustment Spread.

Compounding Methodology Supplement” means, in relation to the Daily Non -Cumulative Compounded RFR Rate or the Cumulative Compounded RFR Rate, a document which:

 

  (a)

is agreed in writing by the Parent, the Agent (in its own capacity) and the Agent (acting on the instructions of the Majority Lenders);

 

  (b)

specifies a calculation methodology for that rate; and

 

  (c)

has been made available to the Parent and each Finance Party.

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:

 

  (i)

information that:

 

  (A)

is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 42 (Confidential Information); or

 

  (B)

is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or

 

  (C)

is known by that Finance Party before the date the information is disclosed to it in accordance with 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

 

  (ii)

any Funding Rate or Reference Bank Quotation.

Confidentiality Undertaking” means a confidentiality undertaking substantially in a recommended form of the LMA as at the date of this Agreement or in any other form agreed between the Parent and the Agent.

Contribution Notice” means a contribution notice issued by the Pensions Regulator under section 38 or section 47 of the Pensions Act 2004.

Corporations Act” means the Corporations Act (2001) (Cth) of Australia.

 

9


Credit Adjustment Spread” means, in relation to a Compounded Rate Loan in a Compounded Rate Currency, any rate which is specified as such in the applicable Reference Rate Terms.

CTA” means the Corporation Tax Act 2009.

Cumulative Compounded RFR Rate” means, in relation to an Interest Period for a Compounded Rate Loan, the percentage rate per annum determined by the Agent (or by any other Finance Party which agrees to determine that rate in place of the Agent) in accordance with the methodology set out in Schedule 20 (Cumulative Compounded RFR Rate) or in any relevant Compounding Methodology Supplement.

Cyprus Account Charge” means the Cyprus law account and receivables charge entered into on or about the date of this Agreement between Expro Cyprus as chargor and the Security Agent as pledgee.

Cyprus Share Pledge” means the Cyprus law deed of pledge of share certificates and charge of shares entered into on or about the date of this Agreement between Expro International Limited (a limited liability company incorporated in Guernsey with company registration number 6411 and having a registered office address of Western Suite, Ground Floor Mill Court La Charroterie St Peter Port Guernsey GY1 1EJ) as pledgor and the Security Agent as pledgee, over the shares in Expro Cyprus.

Daily Non-Cumulative Compounded RFR Rate” means in relation to any RFR Banking Day during an Interest Period for a Compounded Rate Loan, the percentage rate per annum determined by the Agent (or by any other Finance Party which agrees to determine that rate in place of the Agent) in accordance with the methodology set out in Schedule 19 (Daily Non-Cumulative Compounded RFR Rate) or in any relevant Compounding Methodology Supplement.

Debenture” means the English law Debenture between New Eagle 2 Limited, Expro Holdings UK 2 Limited, Expro Holdings UK 3 Limited, Expro Holdings UK 4 Limited, Expro International Group Limited, Expro International Limited, Expro Eurasia Limited, Expro North Sea Limited, Exploration and Production Services (Holdings) Limited, Expro Resources Limited, Expro Benelux Limited, Expro Gulf Limited and Expro Worldwide B.V. as chargors and the Security Agent.

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 or sub-contract in respect of; or

 

  (c)

enters into any other agreement or arrangement having an economic effect substantially similar to a sub-participation or sub-contract 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.

Defaulting Lender” means any Lender:

 

  (a)

which has failed to make its participation in a Loan available (or has notified the Agent or the Parent (which 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 which has failed to provide cash collateral (or has notified the Fronting Bank or the Parent (which has notified the Agent) that it will not provide cash collateral) in accordance with Clause 7.4 (Cash Collateral by Non-Acceptable L/C Lender and Borrowers Option to Provide Cash Cover);

 

10


  (b)

which has otherwise rescinded or repudiated a Finance Document;

 

  (c)

which is a Fronting Bank which has failed to issue a Letter of Credit (or has notified the Agent or the Parent (which has notified the Agent) that it will not issue a Letter of Credit) in accordance with Clause 6.6 (Issue of Letters of Credit) or which has failed to pay a claim (or has notified the Agent or the Parent (which has notified the Agent) that it will not pay a claim) in accordance with (and as defined in) Clause 7.2 (Claims under a Letter of Credit); or

 

  (d)

with respect to which an Insolvency Event has occurred and is continuing,

 

   

unless, in the case of paragraphs (a) and (c) above:

 

  (i)

its failure to pay, or to issue a Letter of Credit, is caused by:

 

  (A)

administrative or technical error; or

 

  (B)

a Disruption Event and

payment is made within three 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.

Delegate” means any delegate, agent, attorney or co-trustee appointed by the Security Agent.

Disposal” has the meaning given to that term in Clause 12.2 (Disposal and Insurance Proceeds).

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.

Dutch Obligor” means an Obligor incorporated under the laws of the Netherlands.

EBITDA” has the meaning given to that term in Clause 26.1 (Financial Definitions).

Eligible Institution” means any Lender or other bank, financial institution, trust, fund or other entity selected by the Parent and which, in each case, is not a Sponsor or a member of the Group.

 

11


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

 

  (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 Group conducted on or from the properties owned or used by any member of the Group.

ERISA” means the US Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

ERISA Affiliate” means any person that for purposes of Title I or Title IV of ERISA or section 412 of the Code would be deemed at any relevant time to be a single employer or otherwise aggregated with any Borrower or a Subsidiary of a Borrower under section 414(b), (c), (m) or (o) of the Code or section 4001 of ERISA.

ERISA Event” shall mean any one or more of the following:

 

  (a)

any reportable event, as defined in section 4043 of ERISA, with respect to a Plan, as to which the PBGC has not waived, under subsection .22, .23, .25, .27 or .28 of PBGC regulation section 4043, the requirement of section 4043(a) of ERISA that it be notified of such event;

 

  (b)

the filing of a notice of intent to terminate any Plan, if such termination would require material additional contributions in order to be considered a standard termination within the meaning of section 4041(b) of ERISA, the filing under section 4041(c) of ERISA of a notice of intent to terminate any Plan or the termination of any Plan under section 4041(c) of ERISA;

 

  (c)

the institution of proceedings, or the occurrence of an event or condition which would reasonably be expected to constitute grounds for the institution of proceedings by the PBGC under section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan;

 

  (d)

the failure to make a required contribution to any Plan that would result in the imposition of a lien or other encumbrance or the provision of security under section 430 of the Code or section 303 or 4068 of ERISA, or the arising of such a lien or encumbrance; the failure to satisfy the minimum funding standard under section 412

 

12


  of the Code or section 302 of ERISA, whether or not waived; or the filing of any request for or receipt of a minimum funding waiver under section 412 of the Code with respect to any Plan or Multiemployer Plan, or that such filing may be made; or a determination that any Plan is, or is expected to be, considered an at risk plan within the meaning of section 430 of the Code or section 303 of ERISA;

 

  (e)

the imposition of liability on Borrower, a Subsidiary of a Borrower or an ERISA Affiliate pursuant to Section 4062 or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA;

 

  (f)

engaging in a non-exempt prohibited transaction within the meaning of section 4975 of the Code or section 406 of ERISA;

 

  (g)

the complete or partial withdrawal of any Borrower, Subsidiary of a Borrower or any ERISA Affiliate from a Multiemployer Plan, the reorganisation or insolvency under Title IV of ERISA of any Multiemployer Plan; or the receipt by any Borrower, any Subsidiary of a Borrower or any ERISA Affiliate, of any notice, or the receipt by any Multiemployer Plan from any Borrower, Subsidiary of a Borrower or any ERISA Affiliate of any notice, that a Multiemployer Plan is in endangered or critical status under section 305 of ERISA; or

 

  (h)

a Borrower, a Subsidiary of a Borrower or an ERISA Affiliate incurring any liability under Title IV of ERISA with respect to any Plan (other than premiums due and not delinquent under section 4007 of ERISA).

Establishment Date” means, in relation to an Incremental Facility, the later of:

 

  (a)

the proposed Establishment Date specified in the relevant Incremental Facility Notice; and

 

  (b)

the date on which the Agent executes the relevant Incremental Facility Notice.

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 prior to Rate Switch Date),

and if, in either case, that rate is less than zero, EURIBOR shall be deemed to be zero.

Event of Default” means any event or circumstance specified as such in Clause 28 (Events of Default).

Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guarantee of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guarantee or security interest is or becomes illegal.

 

13


Existing ABL Agreement” means the credit agreement dated as of 5 November 2018 (as amended from time to time) between, among others, Frank’s International Management B.V., Frank’s International C.V., Frank’s International, LLC and Blackhawk Group Holdings, LLC as borrowers, JPMorgan Chase Bank, N.A. as administrative agent.

Existing Guarantees” means the letters of credit and guarantees issued on behalf of members of the Group prior to, and which remain outstanding at, the date of this Agreement, as set out in Schedule 15 (Existing Guarantees).

Existing L/C Lenders” means a Lender in respect of any Rolled Letter of Credit.

Existing RCF Agreement” means the revolving facility agreement dated 20 December 2018 (as amended and restated from time to time) between, among others, Expro Holdings UK 2 Limited as parent, DNB (UK) Limited as Arranger and DNB Bank ASA, London Branch as agent and security agent.

Expro Cyprus” means Expro Gulf Limited, a limited liability company incorporated in Cyprus with registration number HE 15042 and registered office address situated at 284 Arch. Makariou III, Fortuna Court Block B, Floor 2 & 3, Limassol, Cyprus.

Expiry Date” means, for a Letter of Credit, the last day of its Term.

Facility” means the Revolving Facility or an Incremental Facility.

Facility A” means the revolving loan facility made available under this Agreement as described in paragraph (a)(i) of Clause 2.1 (The Facilities).

Facility A Commitment” means:

 

  (a)

in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading “Facility A Commitment” in Part 2 or Part 3 of Schedule 1 (The Original Parties) and the amount of any other Facility A Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.3 (Increase); and

 

  (b)

in relation to any other Lender, the amount in the Base Currency of any Facility A Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.3 (Increase),

to the extent not cancelled, reduced or transferred by it under this Agreement.

Facility A Loan” means a loan made or to be made under Facility A or the principal amount outstanding for the time being of that loan.

Facility B” means the letter of credit facility made available under this Agreement as described in paragraph (a)(ii) of Clause 2.1 (The Facilities).

Facility B Commitment” means:

 

  (a)

in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading “Facility B Commitment” in Part 2 or Part 3 of Schedule 1 (The Original Parties) and the amount of any other Facility B Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.3 (Increase); and

 

  (b)

in relation to any other Lender, the amount in the Base Currency of any Facility B Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.3 (Increase),

to the extent not cancelled, reduced or transferred by it under this Agreement.

 

14


Facility B Letter of Credit” means:

 

  (a)

a letter of credit, substantially in the form set out in Schedule 10 (Form of Letter of Credit) or in any other form requested by the Parent and agreed by the Agent with the prior consent of the Majority Lenders and the Fronting Bank provided that if the amount of the letter of credit is below USD 500,000 (or its equivalent in other currencies), no prior consent of the Majority Lenders shall be required; or

 

  (b)

any commercial bank guarantee, documentary letter of credit, back-to-back guarantee, performance bond, indemnity or other similar instrument issued to collateralise contractual obligations and other liabilities, such as tax, statutory or governmental obligations (but not in support of obligations constituting indebtedness for borrowed money) of the Group in the ordinary course of business, in each case, in a form requested by a Borrower (or the Parent on its behalf) and agreed by the Agent with the prior consent of the Majority Lenders and the Fronting Bank provided that if the amount of that instrument is below USD 500,000 (or its equivalent in other currencies), no prior consent of the Majority Lenders shall be required,

in each case, issued pursuant to Facility B.

Facility Office” means:

 

  (a)

in respect of a Lender or Fronting Bank, the office or offices notified by that Lender or Fronting Bank to the Agent in writing on or before the date it becomes a Lender or the Fronting Bank (or, following that date, by not less than five Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement; 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 Code or any associated regulations;

 

  (b)

any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or

 

  (c)

any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the IRS, 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 July 2014; or

 

  (b)

in relation to a “passthru payment” described in section 1471(d)(7) of the Code not falling within paragraphs (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA.

FATCA Deduction” means a deduction or withholding from a payment under a Finance Document required by FATCA.

FATCA Exempt Party” means a Party that is entitled to receive payments free from any FATCA Deduction.

Fee Letter” means:

 

15


  (a)

any letter or letters dated on or about the date of this Agreement between the Arranger and the Obligors’ Agent (or the Agent and the Obligors’ Agent or the Security Agent and the Obligors’ Agent) setting out any of the fees referred to in Clause 17 (Fees);

 

  (b)

any agreement setting out fees payable to a Finance Party referred to in paragraph (i) of Clause 2.3 (Increase), Clause 17.5 (Fees Payable in Respect of Letters of Credit) or under any other Finance Document; and

 

  (c)

any agreement setting out fees payable in respect of an Incremental Facility referred to in Clause 9.4 (Restrictions on Incremental Facility Terms and fees) and Clause 9.8 (Incremental Facility fees).

Fee Payment Date” means each of 31 March, 30 June, 30 September and 31 December of any calendar year or, if such a day is not a Business Day, the preceding Business Day.

Finance Document” means this Agreement, any Accession Deed, any Compliance Certificate, any Fee Letter, any Hedging Agreement, any Incremental Facility Notice, any Incremental Facility Lender Certificate, the Intercreditor Agreement, any Resignation Letter, any Transaction Security Document, any Utilisation Request, any Reference Rate Supplement, any Compounding Methodology Supplement 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 “Default”;

 

  (b)

the definition of “Material Adverse Effect”;

 

  (c)

paragraph (a) of the definition of “Permitted Transaction”;

 

  (d)

the definition of “Transaction Document”;

 

  (e)

the definition of “Transaction Security Document”;

 

  (f)

paragraph (a)(iv) of Clause 1.2 (Construction);

 

  (g)

Clause 23 (Guarantee and Indemnity); and

 

  (h)

Clause 28 (Events of Default) (other than paragraph (b) of Clause 28.15 (Repudiation and Rescission of Agreements) and Clause 28.21 (Acceleration))

and a Secured Pension Document (as defined in the Intercreditor Agreement) shall be a Finance Document only for the purpose of the definition of “Transaction Security Document”, paragraph (a)(iv) of Clause 1.2 (Construction) and Clause 23 (Guarantee and Indemnity).

Finance Lease” has the meaning given to that term in Clause 26.1 (Financial Definitions”).

Finance Party” means the Agent, the Arranger, the Security Agent, a Lender, the Fronting Bank, a Hedge Counterparty or the Pension Trustee (on behalf of the Secured Pension Scheme) 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);

 

  (c)

paragraph (c) of the definition of “Material Adverse Effect”;

 

  (d)

Clause 23 (Guarantee and Indemnity);

 

16


  (e)

Clause 27.36 (Further Assurance);

 

  (f)

Clause 33 (Conduct of Business by the Finance Parties); and

 

  (g)

Clause 42.2 (Disclosure of Confidential Information),

and the Pension Trustee (on behalf of the Secured Pension Scheme) shall be a Finance Party only for the purposes of the definition of “Secured Parties” and Clause 23 (Guarantee and Indemnity).

Financial Indebtedness” means any indebtedness for or in respect of:

 

  (a)

moneys borrowed and debit balances (including any resulting debit balances pursuant to netting arrangements) at banks or other financial institutions;

 

  (b)

any acceptance under any acceptance credit or bill discounting facility (or dematerialised equivalent);

 

  (c)

any note purchase facility or the issue of bonds (but not Trade Instruments), notes, debentures, loan stock or any similar instrument;

 

  (d)

the amount of any liability in respect of Finance Leases;

 

  (e)

receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);

 

  (f)

any Treasury Transaction (and, when calculating the value of that Treasury Transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that Treasury Transaction, that amount) shall be taken into account);

 

  (g)

any counter-indemnity obligation in respect of a guarantee, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution in respect of an underlying liability (but not, in any case, Trade Instruments) of an entity which is not a member of the Group which liability would fall within one of the other paragraphs of this definition;

 

  (h)

any amount raised by the issue of shares which are redeemable (other than at the option of the issuer) before the latest Termination Date of the Facilities or are otherwise classified as borrowings under the Accounting Principles;

 

  (i)

any amount of any liability under an advance or deferred purchase agreement if (i) one of the primary reasons behind entering into the agreement is to raise finance or to finance the acquisition or construction of the asset or service in question or (ii) the agreement is in respect of the supply of assets or services and payment is due more than 120 days after the date of supply;

 

  (j)

any amount raised under any other transaction (including any forward sale or purchase, sale and sale back or sale and leaseback agreement) having the commercial effect of a borrowing or otherwise classified as borrowings under the Accounting Principles;

 

  (k)

any amount of any pension related obligation of the Group under the Secured Pension Scheme that is due and payable; and

 

  (l)

(without double counting) the amount of any liability in respect of any guarantee for any of the items referred to in paragraphs (a) to (k) above.

Financial Quarter” has the meaning given to that term in Clause 26.1 (Financial Definitions).

 

17


Financial Support Direction” means a financial support direction issued by the Pensions Regulator under section 43 of the Pensions Act 2004.

Financial Year” has the meaning given to that term in Clause 26.1 (Financial Definitions).

Fronting Bank” means:

 

  (a)

the Original Fronting Bank;

 

  (b)

any Lender which has become a Party as a “Fronting Bank” pursuant to Clause 6.11 (Appointment of Additional Fronting Banks); and

 

  (c)

any Lender which has become a Party as a “Fronting Bank” pursuant to Clause 9 (Establishment of Incremental Facilities),

(and if there is more than one such Fronting Bank, such Fronting Banks shall be referred to, whether acting individually or together, as the “Fronting Bank”) provided that, in respect of a Letter of Credit issued or to be issued pursuant to the terms of this Agreement, the “Fronting Bank” shall be the Fronting Bank which has issued or agreed to issue that Letter of Credit.

Funding Rate” means any individual rate notified by a Lender to the Agent pursuant to paragraph (a)(ii) of Clause 16.5 (Cost of funds).

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.

GST Law” has the meaning given to that term in the Australian GST Act.

Guarantor” means an Original Guarantor, or an Additional Guarantor, unless it has ceased to be a Guarantor in accordance with Clause 31 (Changes to the Obligors).

Guarantor Coverage Test” has the meaning given to it in paragraph (c) of Clause 24.27 (Guarantor Coverage Test).

Hedge Counterparty” means any entity which has become a Party as a “Hedge Counterparty” in accordance with Clause 29.9 (Accession of Hedge Counterparties), 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 Borrower and a Hedge Counterparty in respect of the exchange rate risks of the Borrowers in relation to the Facilities made available under this Agreement.

Holding Company” means, in relation to a person, any other person in respect of which it is a Subsidiary.

IFRS” means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.

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 paragraph (a), (b) or (c) of the definition of “Defaulting Lender”; or

 

18


  (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 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 12 (Form of Increase Confirmation).

Increase Lender” has the meaning given to that term in Clause 2.2 (Increase).

Incremental Facility” means any revolving credit facility that may be established and made available under this Agreement as described in Clause 9 (Establishment of Incremental Facilities).

Incremental Facility Commitment” means:

 

  (a)

in relation to a Lender which is an Incremental Facility Lender, the amount in the Base Currency set opposite its name under the heading “Incremental Facility Commitment” in the relevant Incremental Facility Notice and the amount of any other Incremental Facility Commitment relating to the relevant Incremental Facility transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase); and

 

  (b)

in relation to an Incremental Facility and any other Lender, the amount in the Base Currency of any Incremental Facility Commitment relating to that Incremental Facility transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase),

to the extent not cancelled, reduced or transferred by it under this Agreement.

Incremental Facility Conditions Precedent” means, in relation to an Incremental Facility:

 

  (a)

any document and other evidence specified as such in the relevant Incremental Facility Notice; and

 

  (b)

any applicable Incremental Facility Supplemental Security.

Incremental Facility Lender” means, in relation to an Incremental Facility, any entity which is listed as such in the relevant Incremental Facility Notice.

Incremental Facility Lender Certificate” means a document substantially in the form set out in Schedule 14 (Form of Incremental Facility Lender Certificate).

Incremental Facility Letter of Credit” means:

 

  (a)

a letter of credit, substantially in the form set out in Schedule 10 (Form of Letter of Credit) or in any other form requested by the Parent and agreed by the Agent with the prior consent of the Incremental Facility Majority Lenders and the Fronting Bank under that Incremental Facility provided that if the amount of the letter of credit is below USD 500,000 (or its equivalent in other currencies), no prior consent of the Incremental Facility Majority Lenders shall be required; or

 

19


  (b)

any commercial bank guarantee, documentary letter of credit, back-to-back guarantee, performance bond, indemnity or other similar instrument issued to collateralise contractual obligations and other liabilities, such as tax, statutory or governmental obligations (but not in support of obligations constituting indebtedness for borrowed money) of the Group in the ordinary course of business, in each case, in a form requested by a Borrower (or the Parent on its behalf) and agreed by the Agent with the prior consent of the Incremental Facility Majority Lenders and the Fronting Bank under that Incremental Facility provided that if the amount of that instrument is below USD 500,000 (or its equivalent in other currencies), no prior consent of the Incremental Facility Majority Lenders shall be required,

in each case, issued pursuant to an Incremental Facility.

Incremental Facility Loan” means, in relation to an Incremental Facility, a loan made or to be made under that Incremental Facility or the principal amount outstanding for the time being of that loan.

Incremental Facility Majority Lenders” means, in relation to an Incremental Facility, a Lender or Lenders whose Incremental Facility Commitments relating to that Incremental Facility aggregate more than 662/3 per cent. of the Total Incremental Facility Commitments relating to that Incremental Facility (or, if those Total Incremental Facility Commitments have been reduced to zero, aggregated more than 662/3 per cent. of those Total Incremental Facility Commitments immediately prior to that reduction).

Incremental Facility Notice” means a notice substantially in the form set out in Schedule 13 (Form of Incremental Facility Notice).

Incremental Facility Supplemental Security” means, in relation to an Incremental Facility, such documents (if any) as are reasonably necessary to provide the Incremental Facility Lenders under that Incremental Facility with the benefit of Security, guarantees, indemnities and other assurance against loss equivalent to the Security, guarantees, indemnities and other assurance against loss provided to the Lenders under each other Facility pursuant to the Finance Documents other than any lack of equivalence directly consequent to:

 

  (a)

being provided later in time; or

 

  (b)

(if the relevant Obligor’s original obligation to grant the relevant Security, guarantee, indemnity or other assurance against loss in respect of the relevant Facility was expressly subject to the Agreed Security Principles), any difference in Borrowers and resulting different application of those Agreed Security Principles.

Incremental Facility Terms” means, in relation to an Incremental Facility:

 

  (a)

the currency;

 

  (b)

the Total Incremental Facility Commitments;

 

  (c)

the Margin;

 

  (d)

the level of commitment fee payable pursuant to Clause 17.1 (Commitment Fee) in respect of that Incremental Facility;

 

  (e)

the Borrower(s) to which that Incremental Facility is to be made available;

 

  (f)

the purpose(s) for which all amounts borrowed under that Incremental Facility shall be applied pursuant to Clause 3.1 (Purpose);

 

  (g)

the Availability Period;

 

20


  (h)

any Incremental Facility Conditions Precedent;

 

  (i)

the repayment terms for that Incremental Facility for the purposes of Clause 10.1 (Repayment of Loans); and

 

  (j)

the Termination Date,

each as specified in the Incremental Facility Notice relating to that Incremental Facility.

Incremental Facility Utilisation” means an Incremental Facility Loan or an Incremental Facility Letter of Credit.

Indirect Tax Sharing Agreement” means any indirect tax sharing agreement which complies with the requirements for a valid indirect tax sharing agreement in section 444-90 of Schedule 1 to the Taxation Administration Act 1953 (Cth) and complies with GST Law.

Insolvency Event” in relation to an entity means that the entity:

 

  (a)

is dissolved (other than pursuant to a consolidation, amalgamation, merger or solvent dissolution);

 

  (b)

becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;

 

  (c)

makes a general assignment, arrangement or composition with or for the benefit of its creditors;

 

  (d)

institutes or has instituted against it, by a regulator, supervisor or 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)

institutes for itself or 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 the appointment of an examiner (under Cyprus law), 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 the appointment of an examiner (under Cyprus law), its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);

 

21


  (h)

seeks or becomes subject to the appointment of an administrative receiver, administrator, examiner (under Cyprus law), provisional liquidator, conservator, receiver, trustee, custodian, provisional liquidator, receiver and manager, controller (in the case of any appointment under Australian law, as such terms are defined in the Corporations Act) or other similar official for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in paragraph (d) above);

 

  (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; or

 

  (k)

takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.

Intellectual Property” means:

 

  (a)

any patents, trade marks, 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 Group (which may now or in the future subsist).

Intercreditor Agreement” means the intercreditor agreement dated the same date as this Agreement and made between, among others, the Parent, each Borrower, the Debtors (as defined in the Intercreditor Agreement), DNB Bank ASA, London Branch as Security Agent, DNB Bank ASA, London Branch as senior agent, the Lenders (as Senior Lenders), the Arranger (as Senior Arranger) and the Intra-Group Lenders (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 14.4 (Default Interest).

Interpolated Screen Rate” means, in relation to any Term Rate 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 Loan Agreement” means any agreement evidencing the terms of any Intra-Group Lending (as defined in the Intercreditor Agreement).

Ipso Facto Event” means an Australian Borrower is the subject of:

 

22


  (a)

an announcement, application, compromise, arrangement, managing controller, or administration as described in section 415D(1), 434J(1) or 451E(1) of the Corporations Act; or

 

  (b)

any process which under any law with a similar purpose may give rise to a stay on, or prevention of, the exercise of contractual rights.

IRS” means the US Internal Revenue Service.

ITA” means the Income Tax Act 2007.

Joint Venture” means any joint venture entity, whether a company, unincorporated firm, undertaking, association, joint venture or partnership or any other entity.

L/C Proportion” means in relation to a Lender in respect of any Letter of Credit, the proportion (expressed as a percentage) borne by that Lender’s Available Commitment to the relevant 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 31 (Changes to the Obligors).

Legal Reservations” means:

 

  (a)

the principle that equitable 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 the Limitation Acts, the possibility that an undertaking to assume liability for or indemnify a person against non-payment of stamp duty in any Relevant Jurisdiction may be void and defences of set-off or counterclaim;

 

  (c)

similar principles, rights and defences under the laws of any Relevant Jurisdiction; and

 

  (d)

mandatory provisions (lois de police) of Luxembourg or 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

 

  (b)

any bank, financial institution, trust, fund or other entity which has become a Party as a “Lender” in accordance with Clause 2.3 (Increase), or Clause 9 (Establishment of Incremental Facilities) or Clause 29 (Changes to the Lenders),

which in each case has not ceased to be a Party as such in accordance with the terms of this Agreement.

Letter of Credit” means a Facility B Letter of Credit or an Incremental Facility Letter of Credit.

Letter of Credit Fee” has the meaning given to that term in paragraph (b) of Clause 17.5 (Fees Payable in Respect of Letters of Credit).

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

 

23


  (b)

as otherwise determined pursuant to Clause 16.1 (Unavailability of Screen Rate prior to Rate Switch Date),

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 Facility A Loan or an Incremental Facility Loan.

Local Facility” means a facility made available to a member of the Group by a bank in the country in which that member of the Group is incorporated or operates.

Luxembourg” means the Grand Duchy of Luxembourg.

Luxembourg Civil Code” means the Luxembourg Code civil, as amended from time to time.

Majority Lenders” means:

 

  (a)

(for the purposes of paragraph (a) of Clause 41.2 (Required Consents) in the context of a waiver in relation to a proposed Utilisation of Facility A or Facility B, as the case may be (other than a Utilisation on the Closing Date) of the condition in Clause 4.2 (Further Conditions Precedent)), a Lender or Lenders whose Facility A Commitments and Facility B Commitments, aggregate more than 662/3 per cent. of the Total Facility A Commitments and Total Facility B Commitments; and

 

  (b)

(for the purposes of paragraph (a) of Clause 41.2 (Required Consents) in the context of a waiver in relation to a proposed Utilisation of an Incremental Facility (other than a Utilisation on the Closing Date) of the condition in Clause 4.2 (Further Conditions Precedent)), the Incremental Facility Majority Lenders under that Incremental Facility; and

 

  (c)

(in any other case), a Lender or Lenders whose Commitments aggregate more than 662/3 per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 662/3 per cent. of the Total Commitments immediately prior to that reduction).

Mandatory Prepayment Account” means an interest-bearing account:

 

  (a)

identified in a letter between the Parent or the Obligors’ Agent and the Agent as a Mandatory Prepayment Account;

 

  (b)

subject to Security in favour of the Security Agent which Security is in form and substance satisfactory to the Agent and Security Agent; and

 

  (c)

from which no withdrawals may be made by any members of the Group except as contemplated by this Agreement,

(as the same may be redesignated, substituted or replaced from time to time).

Margin” means:

 

  (a)

in relation to any Facility A Loan, 3.75 per cent. per annum;

 

  (b)

in relation to any Facility B Letter of Credit, the Letter of Credit Fee;

 

  (c)

in relation to any Incremental Facility Loan or any Incremental Facility Letter of Credit, the percentage rate per annum specified as such in the Incremental Facility Notice relating to the Incremental Facility under which that Incremental Facility Loan is made or is to be made or that Incremental Facility Letter of Credit is issued or to be issued;

 

24


  (d)

in relation to any Unpaid Sum relating or referable to a Facility, the rate per annum specified above for that Facility; and

 

  (e)

in relation to any other Unpaid Sum, the highest rate specified above.

Market Disruption Rate” means the rate (if any) specified as such in the applicable Reference Rate Term.

Material Adverse Effect” means a material adverse effect on:

 

  (a)

the business, operations, property or condition (financial or otherwise) of the Group taken as a whole; or

 

  (b)

the ability of an Obligor to perform its payment obligations under the Finance Documents and/or its obligations under Clause 26.2 (Financial Condition); or

 

  (c)

the validity or enforceability of, or the effectiveness or ranking of any Security granted or purporting to be granted pursuant to any of, the Finance Documents or the material rights or remedies of any Finance Party under any of the Finance Documents.

Material Company” means, at any time:

 

  (a)

an Obligor; or

 

  (b)

a wholly-owned member of the Group that holds shares in an Obligor; or

 

  (c)

a Subsidiary of the Parent which has earnings before interest, tax, depreciation and amortisation (calculated on the same basis as EBITDA) representing five per cent. or more of EBITDA or has Assets representing five per cent. or more of the Assets of the Group, calculated on a consolidated basis.

Compliance with the conditions set out in paragraph (c) above shall be determined by reference to the most recent Compliance Certificate supplied by the Parent and/or the latest audited financial statements of that Subsidiary (consolidated in the case of a Subsidiary which itself has Subsidiaries) and the latest Annual Financial Statements or the latest second quarter Quarterly Financial Statements, as applicable.

A report by the Parent’s Auditors that a Subsidiary is or is not a Material Company shall be prima facie evidence of the determination of a Material Company under paragraph (c) above.

Material Default” means a Default arising under:

 

  (a)

Clause 28.1 (Non-Payment);

 

  (b)

Clause 28.6 (Insolvency); and/or

 

  (c)

Clause 28.7 (Insolvency Proceedings).

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)

other than where paragraph (b) below applies:

 

  (i)

(subject to paragraph (iii) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;

 

25


  (ii)

if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and

 

  (iii)

if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end; and

 

  (b)

in relation to an Interest Period for any Loan (or any other period for the accrual of commission or fees) in a Compounded Rate Currency for which there are rules specified as “Business Day Conventions” in respect of that currency in the applicable Reference Rate Terms, those rules shall apply.

The above rules will only apply to the last Month of any period.

Multiemployer Plan” means any multiemployer plan as defined in section 4001(a)(3) of ERISA, which is contributed to by (or to which there is an obligation to contribute of) a Borrower, a Subsidiary of a Borrower or an ERISA Affiliate, and each such plan for the five- year period immediately following the latest date on which a Borrower, a Subsidiary of a Borrower or an ERISA Affiliate contributed to or had an obligation to contribute to such plan.

New Eagle Security Agreement” means the Cayman Islands law deed of charge entered into on or about the date of this Agreement between New Eagle Holdings Limited (an exempted company incorporated in the Cayman Islands) as chargor and the Security Agent as chargee.

New Eagle 2 Share Pledge” means the Cayman Islands law deed of charge entered into on or about the date of this Agreement between New Eagle Holdings Limited (an exempted company incorporated in the Cayman Islands) as chargor and the Security Agent as chargee, over shares in New Eagle 2 Limited.

New Eagle 2 Security Agreement” means the Cayman Islands law deed of charge entered into on or about the date of this Agreement between New Eagle 2 Limited (an exempted company incorporated in the Cayman Islands) as chargor and the Security Agent as chargee.

New Lender” has the meaning given to that term in Clause 29 (Changes to the Lenders).

Non-Acceptable L/C Lender” means a Lender under the Revolving Facility which:

 

  (a)

is not an Acceptable Bank within the meaning of paragraph (a) and (b) of the definition of “Acceptable Bank” (other than a Lender which the Fronting Bank has agreed is acceptable to it notwithstanding that fact);

 

  (b)

is a Defaulting Lender; or

 

  (c)

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 32.11 (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”.

Obligor” means a Borrower or a Guarantor.

Obligors Agent” means Expro Holdings UK 2 Limited, appointed to act on behalf of each Obligor in relation to the Finance Documents pursuant to Clause 2.5 (Obligors Agent).

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).

 

26


Original Financial Statements” means:

 

  (a)

in relation to the Parent,

 

  (i)

annual audited consolidated financial statements for the financial year ending 31 December 2020;

 

  (ii)

quarterly unaudited consolidated financial statements for each financial quarter ending after 31 December 2020 and at least 60 days before the Closing Date;

 

  (b)

in relation to Expro Holdings UK 2 Limited:

 

  (i)

annual audited consolidated financial statements for the financial year ending 31 December 2020; and

 

  (ii)

quarterly unaudited consolidated financial statements for each financial quarter ending after 31 December 2020 and at least 60 days before the Closing Date.

Original Jurisdiction” means, in relation to an Obligor, the jurisdiction under whose laws that Obligor is incorporated as at the date of this Agreement or, in the case of an Additional Obligor, as at the date on which that Additional Obligor becomes Party as a Borrower or a Guarantor (as the case may be).

Original Obligor” means an Original Borrower or an Original Guarantor.

Parents Auditors” means Ernst and Young LLP, KPMG LLP, Deloitte, PricewaterhouseCoopers LLP or any other firm appointed by the Parent to act as its statutory auditors, and (to the extent not prohibited by any applicable laws) approved by the Majority Lenders (such approval not to be unreasonably withheld or delayed).

Participating Member State” means any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.

Party” means a party to this Agreement.

PBGC” means the US Pension Benefit Guaranty Corporation.

Pension Agreement” means the pension agreement relating to the Secured Pension Scheme, dated 11 April 2008, as amended on 19 June 2009 and as supplemented or otherwise modified by the letter agreement dated 29 January 2018 among the the Pension Trustee, Expro Holdings UK 2 Limited, Expro North Sea Limited and Expro Overseas Limited.

Pensions Guarantee” means each of the guarantees provided pursuant to: (a) the deed of guarantee dated 22 October 2018 by Expro Holdings UK 3 Limited for the Pension Trustee of the Secured Pension Scheme; and (b) the deed of guarantee dated 15 November 2019 by Expro Gulf Limited for the Pension Trustee of the Secured Pension Scheme.

Pension Trustee” has the meaning given to that term in the Intercreditor Agreement.

Pensions Regulator” means the body corporate called the Pensions Regulator established under Part I of the Pensions Act 2004.

Pensions Report” means the actuarial valuation report in respect of the Secured Pension Scheme as at 5 April 2017, prepared by Alan Grant of Jardine Lloyd Thompson and dated July 2018 and addressed to the trustees of the Secured Pension Scheme.

Perfection Requirements” means the making or the procuring of the necessary registrations, filings, endorsements, notarisations, stamping, notifications or acknowledgements of the Transaction Security Documents as specifically contemplated by the relevant Transaction Security Documents and/or necessary for the validity, enforceability, perfection, priority or enforcement of the Transaction Security created thereunder, in each case subject to the Agreed Security Principles.

 

27


Permitted Acquisition” means:

 

  (a)

an acquisition by a member of the Group of an asset sold, leased, transferred or otherwise disposed of by another member of the Group in circumstances constituting a Permitted Disposal or a Permitted Transaction;

 

  (b)

an acquisition of shares or securities pursuant to a Permitted Share Issue;

 

  (c)

an acquisition of securities which are Cash Equivalent Investments so long as those Cash Equivalent Investments become subject to the Transaction Security as soon as is reasonably practicable; and

 

  (d)

an acquisition by any member of the Group for cash consideration, of (A) all or more than 50 per cent. of the voting shares or any equivalent ownership interests of any target entity or (B) a business or undertaking carried on as a going concern, but only if:

 

  (i)

on the date a legally binding commitment is entered into to make the acquisition (the “Acquisition Commitment Date”), no Default is continuing or would occur (subject to the Permitted Acquisition Clean-Up Period) as a result of such acquisition;

 

  (ii)

on the date of completion of the acquisition, no Material Default is continuing or would occur (subject to the Permitted Acquisition Clean-Up Period) as a result of such acquisition;

 

  (iii)

the target company, business or undertaking is engaged in a business substantially the same as that carried on by the Group or complementary thereto;

 

  (iv)

if the target company will become a Material Company upon completion of the acquisition, subject to the Permitted Acquisition Clean-Up Period and to the Agreed Security Principles, it shall accede as an Additional Guarantor in accordance with Clause 31.4 (Additional Guarantors);

 

  (v)

the target company is incorporated, organised and permanently located in a country which is not a Sanctioned Country;

 

  (vi)

assuming completion of the acquisition, the Group is in compliance with Clause 24.18 (Anti-Corruption Laws) and Clause 24.19 (Sanctions);

 

  (vii)

the target company has no material contingent or off-balance sheet liabilities other than letters of credit or guarantees issued in the ordinary course of its trading and which remain in existence at the date of the acquisition (but not incurred or increased or having their maturity date extended in contemplation of, or since that acquisition);

 

  (viii)

the target company has, after giving effect to such acquisition, no Financial Indebtedness other than as permitted pursuant to paragraph (e) of the definition of “Permitted Financial Indebtedness”;

 

  (ix)

Senior Leverage for the Relevant Period ending on the most recent Quarter Date prior to the Acquisition Commitment Date for which consolidated financial statements of the Parent have been prepared and are available is less than or equal to 2.00:1 on a pro forma basis (calculated as if the consideration for the proposed acquisition had been paid at the start of that Relevant Period, on a simple aggregated basis); and

 

28


  (x)

if the consideration (including associated costs and expenses) for the acquisition of the target company and any Financial Indebtedness or other assumed actual or contingent liability, in each case remaining in the acquired company (or any such business) at the date of acquisition (such consideration, the “Total Consideration”) exceeds USD50,000,000 (or its equivalent in other currencies), the Parent shall deliver to the Agent before (or simultaneously with) completion of the acquisition copies of the executed sale and purchase agreement in connection with such acquisition, together with copies (on a reliance basis, to the extent the providers of those reports customarily extend reliance to lenders and otherwise on a non-reliance basis, for information purposes only) of third party due diligence reports it has commissioned in relation to the acquisition.

Any acquisition where the Total Consideration exceeds USD10,000,000 (or its equivalent in other currencies) will only be permitted under paragraph (d) above if the Parent has delivered to the Agent not later than ten Business Days before completion of the acquisition a certificate signed by the chief financial officer of the Parent to which is attached a copy of the most recent audited (to the extent audited) or otherwise unaudited financial statements of the target company or business.

Such certificate must give calculations showing in reasonable detail that the Parent would have remained in compliance with its obligations under Clause 26 (Financial Covenants) if the covenant tests were recalculated for the Relevant Period ending on the most recent Quarter Date prior to the Acquisition Commitment Date for which consolidated financial statements of the Parent have been prepared and are available, consolidating the financial statements of the target company (consolidated if it has Subsidiaries) or business with the financial statements of the Group for such period on a pro forma basis (calculated as if the consideration for the proposed acquisition had been paid at the start of that Relevant Period on a simple aggregated basis and, for the avoidance of doubt, including the EBITDA of the target company (and its Subsidiaries) or business for the same Relevant Period).

 

  (e)

any acquisition of, or any contribution on account of existing, shares or securities in any joint venture so long as the Total Consideration (as defined in paragraph (d)(x) above) does not exceed USD30,000,000 (or its equivalent in other currencies) in any Financial Year of the Parent; and

 

  (f)

the incorporation of a company which on incorporation becomes a member of the Group; but only if:

 

  (i)

that company is incorporated in a jurisdiction (other than an Excluded Jurisdiction) of a member of the Group, with limited liability; and

 

  (ii)

if the shares in the company are owned by an Obligor, Security over the shares of that company, in form and substance satisfactory to the Agent, is created in favour of the Security Agent within 30 days of its incorporation.

Permitted Acquisition Clean-Up Period” means, in relation to a Permitted Acquisition permitted pursuant to paragraph (d) of the definition of “Permitted Acquisition”, the period beginning on the closing date for that acquisition and ending on the date falling six Months after that closing date or on such other date agreed by the Majority Lenders.

Permitted Disposal” means any sale, lease, licence, transfer or other disposal which, except in the case of paragraph (b), is on arm’s length terms:

 

29


  (a)

of trading stock or cash made by any member of the Group in the ordinary course of trading of the disposing entity;

 

  (b)

of any asset by a member of the Group to another member of the Group;

 

  (c)

of assets (other than shares, businesses, Real Property/Intellectual Property) in exchange for other assets comparable or superior as to type, value and quality (other than an exchange of a non-cash asset for cash);

 

  (d)

of obsolete or redundant vehicles, plant and equipment which is no longer required for the purposes of the relevant person’s business or operations for cash;

 

  (e)

of fixed or long term assets (other than shares or business) or contractual rights (or the disposal of shares in a company whose material assets are limited to such assets and rights) where the proceeds of such disposal are committed to be used and so used within 12 Months of that disposal:

 

  (i)

to purchase replacement fixed or long term assets or contractual rights or other fixed or long term assets or contractual rights acquired for use in the business of the Group carried on in accordance with the Finance Documents;

 

  (ii)

for the purposes of a Permitted Acquisition;

 

  (iii)

for any Capital Expenditure; or

 

  (iv)

in prepayment of the Facilities as set out in Clause 12.2 (Disposal and Insurance Proceeds);

 

  (f)

of Cash Equivalent Investments for cash or in exchange for other Cash Equivalent Investments;

 

  (g)

constituted by a licence of intellectual property rights permitted by Clause 27.29 (Intellectual Property) where such licence or sub-licence is entered into in the ordinary course of trading;

 

  (h)

arising as a result of any Permitted Security;

 

  (i)

arising as a result of any Permitted Factoring;

 

  (j)

of assets (other than shares) for cash where the higher of the market value and net consideration received does not exceed USD15,000,000 (or its equivalent in other currencies) for each such sale, lease, licence, transfer or other disposal and (when aggregated with the higher of the market value and net consideration received for any other sale, lease, licence, transfer or other disposal not allowed under the preceding paragraphs or as a Permitted Transaction) does not exceed USD25,000,000 (or its equivalent in other currencies) in total in any Financial Year of the Parent; and

 

  (k)

any disposal of assets (including any shares in or business, undertakings or divisions of any member of the Group, but excluding a disposal constituting a Change of Control), provided that:

 

  (i)

at the time the relevant member of the Group legally commits to the disposal of such asset, no Default has occurred and is continuing or would occur as a result of such disposal;

 

  (ii)

any such disposal is for fair market value (and if the disposal proceeds are in excess of USD75,000,000 (or its equivalent in other currencies) as determined by a reputable third party independent financial adviser or expressly confirmed (without qualification) by the annual impairment review process conducted by the Parent’s Auditors in connection with the preparation of the Annual Financial Statements) with at least 75 per cent. of the consideration for such disposal consisting of Cash at the time of such disposal; and

 

30


  (iii)

the Disposal Proceeds of such disposal received by the Group are applied in prepayment of the Facilities, as required pursuant to Clause 12.2 (Disposal and Insurance Proceeds).

Permitted Factoring” means any non-recourse sales or disposals of receivables (other than the receivables which are subject to Transaction Security) pursuant to factoring or receivables financings on arm’s length terms for cash payable at the time of disposal, provided that there is no recourse of any kind to any member of the Group in connection with any such factoring or receivables financing (including the granting of Security over any other assets of any member of the Group).

Permitted Financial Indebtedness” means Financial Indebtedness:

 

  (a)

arising under any Finance Documents and any Subordinated Loan Documents;

 

  (b)

to the extent covered by a Letter of Credit or other letter of credit, bond, guarantee or indemnity issued under the Facilities;

 

  (c)

arising under a foreign exchange transaction for spot or forward delivery entered into in connection with protection against fluctuation in currency rates where that foreign exchange exposure arises in the ordinary course of trade or pursuant to any Hedging Agreement, but not a foreign exchange transaction for investment or speculative purposes;

 

  (d)

arising under a Permitted Loan or a Permitted Guarantee or as permitted by Clause 27.32 (Treasury Transactions);

 

  (e)

of any person acquired by a member of the Group after the date of this Agreement in accordance with paragraph (d) of the definition of “Permitted Acquisition”, which is:

 

  (i)

incurred under arrangements in existence at the date of acquisition, but not incurred or increased or having its maturity date (howsoever defined) extended in contemplation of, or since, that acquisition; and

 

  (ii)

outstanding only for a period of six Months following the date of acquisition, provided that this paragraph (e)(ii) shall not apply to (x) any existing letters of credit and/or guarantees issued on behalf the acquired person in its day-to-day business, (y) any existing Finance Leases, and (z) any other debt of that acquired person which when aggregated with the debt of any other person acquired pursuant to paragraph (d) of the definition of “Permitted Acquisition” and outstanding in reliance of this sub-paragraph (e)(ii)(z), does not exceed in aggregate an amount of USD50,000,000 (or its equivalent in other currencies) during the term of the Facilities, and which, in each case, may remain in place;

 

  (f)

incurred or established on an unsecured basis, being structurally subordinated to, or pari passu with, the indebtedness under the Facilities, by a member of the Group to finance a Permitted Acquisition in an amount not exceeding USD20,000,000 (or its equivalent in other currencies) in any Financial Year of the Parent;

 

  (g)

arising pursuant to the Pension Agreement, the Secured Pension Scheme and pensions legislation, in each case in existence at the date of this Agreement (and not increased after the date of this Agreement);

 

31


  (h)

arising from any unsecured export financing arrangements on normal commercial terms, provided that the aggregate amount outstanding under such arrangements does not exceed USD25,000,000 (or its equivalent in other currencies or currencies) in any Financial Year of the Parent;

 

  (i)

arising under any netting arrangement entered into in the ordinary course of banking arrangements for the purpose of netting debit and credit balances of members of the Group;

 

  (j)

arising under the intercompany accounts clearing agreement dated 31 March 2015 between Exploration and Production Services (Holdings) Limited and certain members of the Group as listed therein;

 

  (k)

arising under the Existing Guarantees, provided that such Existing Guarantees shall not be increased nor have their expiry date extended in contemplation of the entry into, or after the date of, this Agreement and provided further that, within 180 days from the Closing Date, all Existing Guarantees which are indicated to be rolled-over in Schedule 15 (Existing Guarantees), shall be cancelled and Rollover Letters of Credit be issued in accordance with the terms of this Agreement;

 

  (l)

arising under any Permitted Factoring;

 

  (m)

arising under any Finance Lease or vendor finance provided that the aggregate capital value of all such items so leased under outstanding Finance Leases or Financial Indebtedness that constitutes vendor finance, incurred by members of the Group does not exceed USD 50,000,000 (or its equivalent in other currencies) in any Financial Year of the Parent; and

 

  (n)

arising under Local Facilities provided to members of the Group which are not Obligors (whether on secured (other than with assets of any Obligor and/or which are subject to Transaction Security) or unsecured basis) in an aggregate amount of USD25,000,000 (or its equivalent in other currencies) in any Financial Year of the Parent;

 

  (o)

arising under the overdraft facilities agreement dated 21 September 2018 between, among others, Expro Holdings UK 4 Limited, Exploration and Production Services (Holdings) Limited, Expro North Sea Limited and certain other Subsidiaries of the Parent and HSBC Bank plc; and

 

  (p)

not permitted by the preceding paragraphs or as a Permitted Transaction and the outstanding principal amount of which does not exceed USD50,000,000 (or its equivalent in other currencies) in aggregate for the Group in any Financial Year of the Parent.

Permitted Guarantee” means:

 

  (a)

any guarantee provided in favour of the Secured Pension Scheme pursuant to Clause 23 (Guarantee and Indemnity) up to a maximum aggregate amount (which includes, but shall not be limited to, any accrued interest, late payments, fees, costs and expenses or other similar charges) of GBP33,000,000 (or its equivalent in other currencies), which amount shall be reduced accordingly if payments have been made to the Pension Trustee of the Secured Pension Scheme pursuant to and in accordance with the terms of the Intercreditor Agreement and any other guarantees (including, but not limited, to Pensions Guarantees) provided in respect of the Financial Indebtedness permitted pursuant to paragraph (g) of the definition of “Permitted Financial Indebtedness”;

 

  (b)

the endorsement of negotiable instruments in the ordinary course of trade;

 

32


  (c)

any performance or similar bond guaranteeing performance by a member of the Group under any contract entered into on normal commercial terms and in the ordinary course of trade;

 

  (d)

any guarantee permitted under Clause 27.22 (Financial Indebtedness);

 

  (e)

any guarantee, indemnity or counter-indemnity arising under any Finance Document;

 

  (f)

any guarantees issued in the ordinary course of its trade by any company acquired by a member of the Group in accordance with paragraph (d) of the definition of “Permitted Acquisition”;

 

  (g)

any guarantee given in respect of the netting or set-off arrangements permitted pursuant to paragraph (d) of the definition of “Permitted Security”; or

 

  (h)

any indemnity given in the ordinary course of the documentation of an acquisition or disposal transaction which is a Permitted Acquisition or Permitted Disposal which indemnity is in a customary form and subject to customary limitations.

Permitted Loan” means:

 

  (a)

any trade credit extended by any member of the Group to its customers on normal commercial terms and in the ordinary course of its trading activities;

 

  (b)

Financial Indebtedness which is referred to in the definition of, or otherwise constitutes, Permitted Financial Indebtedness (except under paragraph (d) of that definition);

 

  (c)

subject to paragraph (j) below, a loan made to a Joint Venture;

 

  (d)

a loan made by an Obligor (other than the Parent) to another Obligor (other than the Parent) or made by a member of the Group which is not an Obligor to another member of the Group which is an Obligor (other than the Parent);

 

  (e)

any loan made by an Obligor (other than the Parent) to a member of the Group which is not an Obligor;

 

  (f)

any loans made by a member of the Group to another member of the Group (other than any loans between Obligors);

 

  (g)

[reserved];

 

  (h)

any loans made by any Obligor, as registered with central banks or other governmental authorities of countries with currency restrictions, solely for the purpose of creating a conduit for cash repatriation to the relevant Obligor(s);

 

  (i)

any Structural Intra-Group Loan;

 

  (j)

a loan made by a member of the Group to a director, officer or senior employee of any member of the Group if the amount of that loan when aggregated with (i) the amount of all loans to directors, officers or senior employees by members of the Group and (ii) the amount of the loans made pursuant to paragraph (c) above, does not exceed USD30,000,000 (or its equivalent in other currencies) in any Financial Year of the Parent,

so long as in the case of paragraphs (d), (e) and (i) above:

 

  (i)

the creditor of any such Financial Indebtedness shall (if it is an Obligor) grant security (or shall procure that such security is granted) over its rights in respect of such Financial Indebtedness in favour of the Secured Parties on terms acceptable to the Agent (acting on the instructions of the Majority Lenders); and

 

33


  (ii)

to the extent required by the Intercreditor Agreement, the creditor and (if the debtor is a member of the Group) the debtor of any such Financial Indebtedness (to the extent such Financial Indebtedness exceeds (whether on an individual basis or pursuant to a series of related transactions) USD1,000,000 (or its equivalent in any other currency) at any time) are or become party to the Intercreditor Agreement as an Intra-Group Lender and a Debtor (as defined, in each case, in the Intercreditor Agreement) respectively.

Permitted Payment” means a payment by any Borrower to the Parent under the relevant Structural Intra-Group Loan provided that such payment is made when (a) no Default is continuing or would occur immediately after the making of the payment; and (b) such payment is not in breach of the Intercreditor Agreement.

Permitted Security” means:

 

  (a)

any Security arising under the Finance Documents;

 

  (b)

any lien arising by operation of law and in the ordinary course of trading and not as a result of any default or omission by any member of the Group;

 

  (c)

the netting arrangements referred to under paragraph (i) of the definition of “Permitted Financial Indebtedness” provided that the extent of all security under such arrangements is limited to the account balances with the relevant bank which are the subject of such arrangements and any lien arising under the general terms and conditions of banks with whom any member of the Group maintains a banking relationship in the ordinary course of business;

 

  (d)

any payment or close-out netting or set-off arrangement pursuant to any Treasury Transaction or foreign exchange transaction entered into by a member of the Group which constitutes Permitted Financial Indebtedness, excluding any Security or Quasi-Security under a credit support arrangement;

 

  (e)

any Security or Quasi-Security over or affecting any asset acquired by a member of the Group after the date of this Agreement if:

 

  (i)

the Security or Quasi-Security was not created in contemplation of the acquisition of that asset by a member of the Group;

 

  (ii)

the principal amount secured has not been increased in contemplation of or since the acquisition of that asset by a member of the Group; and

 

  (iii)

the Security or Quasi-Security is removed or discharged within six Months of the date of acquisition of such asset, except if such Security or Quasi-Security is provided in connection with the Financial Indebtedness as referred to in paragraph (e)(ii) of the definition of “Permitted Financial Indebtedness”;

 

  (f)

any Security or Quasi-Security over or affecting any asset of any company which becomes a member of the Group after the date of this Agreement, where the Security or Quasi-Security is created prior to the date on which that company becomes a member of the Group if:

 

  (i)

the Security or Quasi-Security was not created in contemplation of the acquisition of that company;

 

  (ii)

the principal amount secured has not increased in contemplation of or since the acquisition of that company; and

 

34


  (iii)

the Security or Quasi-Security is removed or discharged within six Months of that company becoming a member of the Group, except if such Security or Quasi-Security is provided in connection with the Financial Indebtedness as referred to in paragraph (e)(ii) of the definition of “Permitted Financial Indebtedness”;

 

  (g)

any Security or Quasi-Security arising under any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to a member of the Group in the ordinary course of trading and on the supplier’s standard or usual terms and not arising as a result of any default or omission by any member of the Group;

 

  (h)

any Quasi-Security arising as a result of a disposal which is a Permitted Disposal;

 

  (i)

any Security or Quasi-Security arising as a consequence of any Financial Indebtedness permitted pursuant to paragraph (m) of the definition of “Permitted Financial Indebtedness”;

 

  (j)

any Security or Quasi-Security arising as a consequence of any Financial Indebtedness permitted pursuant to paragraph (g) of the definition of “Permitted Financial Indebtedness”;

 

  (k)

any Security or Quasi-Security arising as a consequence of any Local Facilities permitted pursuant to paragraph (n) of the definition of “Permitted Financial Indebtedness”;

 

  (l)

(i) any cash collateral securing the Existing Guarantees as reflected in Schedule 15 (Existing Guarantees), provided that to the extent any Existing Guarantees indicated to be rolled-over in Schedule 15 (Existing Guarantees) have been cancelled and replaced with Rollover Letters of Credit, the cash collateral in respect of such cancelled Existing Guarantees (if any) shall be concurrently, irrevocably and unconditionally released by the issuing bank of such cancelled Existing Guarantees; and (ii) any cash collateral provided in respect of a Letter of Credit provided pursuant to this Agreement; or

 

  (m)

any liens for Taxes, assessments or other governmental charges or levies up to an aggregate amount of USD5,000,000 (or its equivalent in other currencies) not yet delinquent by more than 30 days or which are being contested in good faith and are not frivolous pursuant to the terms of Clause 27.7 (Taxation); or

 

  (n)

any Security securing indebtedness the outstanding principal amount of which (when aggregated with the outstanding principal amount of any other indebtedness which has the benefit of Security given by any member of the Group other than any permitted under paragraphs (a) to (m) above) does not exceed USD50,000,000 (or its equivalent in other currencies).

Permitted Share Issue” means an issue of shares (or a contribution on account of existing shares) by a member of the Group to its immediate Holding Company or a member of the Group or (solely in the case of the Parent) any other person provided that if the existing shares of that member of the Group (including any contribution on account of the existing shares) are the subject of the Transaction Security, the newly-issued shares (including any contribution on account of the existing shares) will also become subject to the Transaction Security on the same terms and to the same extent as the Lenders would have benefited from if the share issue (or contribution on account of existing shares) had not occurred and provided further that such issue of shares (or contribution on account of existing shares) does not cause a Change of Control to occur.

Permitted Transaction” means:

 

35


  (a)

any disposal required, Financial Indebtedness incurred, guarantee, indemnity or Security or Quasi-Security given, or other transaction arising, under the Finance Documents;

 

  (b)

the solvent liquidation or reorganisation (including any amalgamation, demerger, merger, consolidation or corporate reconstruction) of any member of the Group which is not an Obligor so long as any payments or assets distributed as a result of such liquidation or reorganisation are distributed to other members of the Group;

 

  (c)

transactions (other than (i) any sale, lease, license, transfer or other disposal, (ii) the granting or creation of Security or the incurring or permitting to subsist of Financial Indebtedness and (iii) for the avoidance of doubt, any transactions made with, for or in respect of, any Joint Venture) conducted in the ordinary course of trading on arm’s length terms; or

 

  (d)

the solvent liquidation or reorganisation (including any amalgamation, demerger, merger, consolidation or corporate reconstruction) of any member of the Group (other than the Parent or any of its direct Subsidiaries whose shares are the subject of Transaction Security) so long as any payments, shares or assets distributed as a result of such liquidation or reorganisation are distributed to Obligors and if any share or other assets are subject to Transaction Security, substantially equivalent Security must be granted over such shares or assets of the recipient such that they form part of the Transaction Security.

Plan” means an “employee pension benefit plan” as defined in section 3 of ERISA (other than a Multiemployer Plan), that is maintained or is contributed to by the Borrower, a Subsidiary of the Borrower or any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code, and such plan for the five-year period immediately following the latest date on which a Borrower, a Subsidiary of a Borrower or an ERISA Affiliate maintained, contributed to or had an obligation to contribute to (or is deemed under section 4069 of ERISA to have maintained or contributed to or to have had an obligation to contribute to, or otherwise to have liability with respect to) such plan.

Pre-Approved New Lender List” means the list of entities agreed in writing on or before the date of this Agreement by or on behalf of the Parent and the Arranger, as amended and/or supplemented from time to time with the consent of the Parent (not to be unreasonably withheld or delayed).

Primary Term Rate” means:

 

  (a)

LIBOR; or

 

  (b)

in relation to any Loan in euro, EURIBOR.

PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

Qualified ECP Guarantor” means, in respect of any Swap Obligation, any entity that has total assets exceeding USD10,000,000 at the time the relevant guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

Qualifying Lender” has the meaning given to that term in Clause 18 (Tax Gross-Up and Indemnities).

 

36


Quarter Date” has the meaning given to that term in Clause 26.1 (Financial Definitions).

Quasi-Security” has the meaning given to that term in Clause 27.14 (Negative Pledge).

Quotation Day” means, in relation to any period for which an interest rate is to be determined:

 

  (a)

 

  (i)

(if the currency is sterling), the first day of that period;

 

  (ii)

(if the currency is euro), two TARGET Days before the first day of that period; or

 

  (iii)

(for any other currency), two Business Days before the first day of that period,

(unless market practice differs in the Relevant Market for that currency, in which case the Quotation Day for that currency will be determined by the Agent in accordance with market practice in the Relevant Market (and if quotations would normally be given on more than one day, the Quotation Day will be the last of those days)).

Quoted Tenor” means, in relation to a Primary Term Rate, any period for which that rate is customarily displayed on the relevant page or screen of an information service.

Real Property” means:

 

  (a)

any freehold, leasehold or immovable property; and

 

  (b)

any buildings, fixtures, fittings, fixed plant or machinery from time to time situated on or forming part of that freehold, leasehold or immovable property.

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 Reference Bank.

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 Reference Banks:

 

  (i)

in relation to LIBOR as either:

 

  (A)

if:

 

  (1)

the Reference Bank is a contributor to the applicable Screen Rate; and

 

  (2)

it consists of a single figure,

the rate (applied to the relevant Reference Bank and the relevant currency and period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator; or

 

  (B)

in any other case, the rate at which the relevant Reference Bank could fund itself in the relevant currency for the relevant period with reference to the unsecured wholesale funding market; or

 

  (ii)

in relation to EURIBOR:

 

  (A)

(other than where paragraph (B) below applies) as the rate at which the relevant 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

 

37


  (B)

if different, as the rate (if any and applied to the relevant Reference Bank and the relevant period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator.

Reference Banks” means such entities as may be appointed by the Agent in consultation with the Parent.

Reference Rate Supplement” means, in relation to any currency, a document which:

 

  (a)

is agreed in writing by the Company, the Agent (in its own capacity) and the Agent (acting on the instructions of the Majority Lenders);

 

  (b)

specifies for that currency the relevant terms which are expressed in this Agreement to be determined by reference to Reference Rate Terms;

 

  (c)

specifies whether that currency is a Compounded Rate Currency or a Term Rate Currency; and

 

  (d)

has been made available to the Company and each Finance Party.

Reference Rate Term” means, in relation to:

 

  (a)

a currency;

 

  (b)

a Loan or an Unpaid Sum in that currency;

 

  (c)

an Interest Period for that Loan or Unpaid Sum (or other period for the accrual of commission or fees in a currency); or

 

  (d)

any term of this Agreement relating to the determination of a rate of interest in relation to such a Loan or Unpaid Sum,

the terms set out for that currency, and (where such terms are set out for different categories of Loan, Unpaid Sum or accrual of commission or fees in that currency) for the category of that Loan, Unpaid Sum or accrual, in Schedule 18 (Reference Rate Terms) or in any Reference Rate Supplement.

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 Jurisdiction” means, in relation to an Obligor:

 

  (a)

its Original Jurisdiction;

 

  (b)

any jurisdiction where any asset subject to or intended to be subject to the Transaction Security to be created by it is situated;

 

  (c)

any jurisdiction where it conducts its business; and

 

  (d)

the jurisdiction whose laws govern the perfection of any of the Transaction Security Documents entered into by it.

Relevant Market” means:

 

  (a)

subject to paragraph (b) below:

 

38


  (i)

in relation to euro, the European interbank market; and

 

  (ii)

in relation to any other currency, the London interbank market; and

 

  (b)

in relation to a Compounded Rate Currency, the market specified as such in the applicable Reference Rate Terms.

Relevant Nominating Body” means any applicable central bank, regulator or other supervisory authority or a group of them, or any working group or committee sponsored or chaired by, or constituted at the request of, any of them or the Financial Stability Board.

Relevant Period” has the meaning given to that term in Clause 26.1 (Financial Definitions).

Relevant Person” means:

 

  (a)

each of the Obligors and each other member of the Group; and

 

  (b)

each of the directors, officers and employees of the persons referred to in paragraph (a) above.

Renewal Request” means a written notice delivered to the Agent in accordance with Clause 6.7 (Renewal of a Letter of Credit).

Repeating Representations” means each of the representations set out in Clause 24.2 (Status) to Clause 24.7 (Governing Law and Enforcement), Clause 24.11 (No Default), paragraphs (e), (f) and (g) of Clause 24.13 (Original Financial Statements), Clause 24.19 (Sanctions), Clause 24.21 (Ranking), Clause 24.37 (Margin Stock) and Clause 24.38 (Investment Company Act).

Reporting Day” means the day (if any) specified as such in the applicable Reference Rate Terms.

Reporting Time” means the relevant time (if any) specified as such in the applicable Reference Rate Terms.

Representative” means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.

Resignation Letter” means a letter substantially in the form set out in Schedule 7 (Form of Resignation Letter).

Revolving Facility” means Facility A and Facility B.

Revolving Facility Utilisation” means a Facility A Loan or a Facility B Letter of Credit.

RFR” means the rate specified as such in the applicable Reference Rate Terms.

RFR Banking Day” means any day specified as such in the applicable Reference Rate Terms.

Rolled Letters of Credit” means any letter of credit issued in connection with the Existing RCF Agreement prior to, and which remain outstanding at, the date of this Agreement, as set out in Schedule 16 (Rolled Letters of Credit).

Rollover Letter of Credit” means a Facility B Letter of Credit:

 

  (a)

issued or to be issued on the same day that an Existing Guarantee is cancelled;

 

  (b)

the aggregate amount of which is equal to or less than the amount of the cancelled Existing Guarantee;

 

  (c)

in the same currency as the cancelled Existing Guarantee; and

 

39


  (d)

made or to be made to the same beneficiary as under, and for the same purpose as, the cancelled Existing Guarantee.

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 Agent pursuant to a drawing in respect of a Letter of Credit is due to be met;

 

  (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;

 

  (c)

in the same currency as the maturing Loan (unless it arose as a result of the operation of Clause 8.2 (Unavailability of a Currency)) or the relevant claim in respect of that Letter of Credit; and

 

  (d)

made or to be made to the same Borrower for the purpose of:

 

  (i)

refinancing that maturing Loan; or

 

  (ii)

satisfying the relevant claim in respect of that Letter of Credit.

Sanctions Authority” means the Norwegian State, the United Nations (including, without limitation, the United Nations Security Council), the European Union, the Member States of the European Union, the United Kingdom (including, without limitation, Her Majesty’s Treasury of the United Kingdom), the United States of America (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury and the U.S. Department of State), any other relevant sanctions authority with jurisdiction over any Finance Party, any Obligor or any other member of the Group and any authority acting on behalf of any of them in connection with Sanctions Laws and Regulations.

Sanctioned Country” means, at any time, a country, a region, or territory which is the target or the subject of comprehensive, country-, region- or territory-wide Sanctions Laws and Regulations (at the time of this Agreement, Crimea, Cuba, Iran, North Korea and Syria).

Sanctions Laws and Regulations” means any applicable (to any Relevant Person and/or Finance Party as the context provides) laws, regulations or orders which impose, administer or enforce, from time to time, any trade, economic or financial sanctions, embargoes or which relates to anti-terrorism.

Sanctions List” means:

 

  (a)

the lists of designations and/or targets under Sanctions Laws and Regulations maintained by any Sanctions Authority; and/or

 

  (b)

any other designation or target under Sanctions Laws and Regulations listed and/or adopted by a Sanctions Authority,

in all cases, from time to time.

Sanctions Restricted Person” means, at any time, a person that is:

 

  (a)

listed on any Sanctions List or targeted by Sanctions Laws and Regulations (whether designated by name or by reason of being included in a class of person); or

 

  (b)

operating in, located in, organised in, or incorporated under, the laws of any Sanctioned Country; or

 

40


  (c)

directly or indirectly owned or controlled by, or acting on behalf, at the direction or for the benefit of, a person referred to in paragraph (a) and/or (to the extent relevant under Sanctions Laws and Regulations) paragraph (b) above, including, without limitation, a person that is deemed by any Sanctions Authority to be a sanctions target based on the ownership of such legal entity by Sanctions Restricted Person(s).

Selection Notice” means a notice substantially in the form set out in Part 3 (Selection Notice) of Schedule 3 (Requests and Notices) given in accordance with Clause 15 (Interest Periods) in relation to Facility A.

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 (before any correction, recalculation or republication by the administrator) 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 (before any correction, recalculation or republication by the administrator) 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.

Secured Parties” means each Finance Party from time to time party to this Agreement, any Receiver or Delegate, the Pension Trustee (on behalf of the Secured Pension Scheme) and the Hedge Counterparties parties to the Intercreditor Agreement.

Secured Pension Documents” has the meaning given to that term in the Intercreditor Agreement.

Secured Pension Scheme” means Expro Pension Plan.

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, including, for the avoidance of doubt, any “security interest” as defined in sections 12(1) or 12(2) of the Australian PPSA.

Separate Loan” has the meaning given to that term in Clause 10.1 (Repayment of Loans).

Specified Time” means a day or time determined in accordance with Schedule 9 (Timetables).

Sponsor” means any of Oakhill Advisers, HPS Investment Partners and Angelo, Gordon & Co and together, the “Sponsors”.

Structural Intra-Group Loan Agreement” means any agreement evidencing the terms of any Structural Intra-Group Loan.

Structural Intra-Group Loan” means any loan by the Parent to any of the Borrowers.

Subordinated Loan Documents” means any unsecured subordinated loan agreement between the Parent as borrower and any Sponsor as lender or any unsecured subordinated loan notes of the Parent, issued from time to time.

 

41


Subsidiary” means a subsidiary undertaking within the meaning of section 1162 of the Companies Act 2006

Super Majority Lenders” means a Lender or Lenders whose Commitments aggregate more than 85 per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 85 per cent. of the Total Commitments immediately prior to that reduction.)

Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.

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” means any tax, levy, impost, duty or other charge or withholding of a similar nature in any jurisdiction (including any penalty or interest 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 Fronting Bank is under a liability under a Letter of Credit.

Termination Date” means:

 

  (a)

in relation to Facility A and Facility B, the date falling 36 Months after the Closing Date; and

 

  (b)

in relation to an Incremental Facility, the date specified as such in the Incremental Facility Notice relating to that Incremental Facility.

Term Rate Currency” means:

 

  (a)

euro; and

 

  (b)

any currency specified as such in a Reference Rate Supplement relating to that currency,

to the extent, in any case, not specified otherwise in a subsequent Reference Rate Supplement.

Term Rate Loan” means any Loan or, if applicable, Unpaid Sum in a Term Rate Currency to the extent that it is not, or has not become, a “Compounded Rate Loan” for its then current Interest Period pursuant to Clause 16.1 (Unavailability of Screen Rate prior to Rate Switch Date) or Clause 14A (Rate Switch).

Term Reference Rate” means, in relation to a Term Rate Loan:

 

  (a)

the applicable Primary Term Rate as of the Quotation Time or 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 prior to Rate Switch Date),

and if, in either case, that rate is less than zero, the Term Reference Rate shall be deemed to be zero.

 

42


Third Party Disposal” means the disposal of an Obligor to a person which is not a member of the Group where that disposal is permitted under Clause 27.15 (Disposals) or made with the approval of the Majority Lenders (and the Parent has confirmed this is the case).

Total Commitments” means the aggregate of the Total Facility A Commitments, the Total Facility B Commitments and the Aggregate Total Incremental Facility Commitments, being USD200,000,000 at the date of this Agreement.

Total Facility A Commitments” means the aggregate of the Facility A Commitments, being USD130,000,000 at the date of this Agreement.

Total Facility B Commitments” means the aggregate of the Facility B Commitments, being USD67,500,000 at the date of this Agreement.

Total Incremental Facility Commitments” means, in relation to an Incremental Facility, the aggregate of the Incremental Facility Commitments relating to that Incremental Facility.

Trade Instruments” means any performance bonds, advance payment bonds or documentary letters of credit issued in respect of the obligations of any member of the Group arising in the ordinary course of trading of that member of the Group.

Transaction Documents” means the Finance Documents, the Structural Intra-Group Loan Agreements, the Intra-Group Loan Agreements and the Subordinated Loan Documents.

Transaction Security” means the Security created or expressed to be created in favour of the Security Agent pursuant to the Transaction Security Documents.

Transaction Security Documents” means each of the documents referred to as being a Transaction Security Document in paragraph 3(d) of Part 1 of Schedule 2 (Conditions Precedent) and any document required to be delivered to the Agent under paragraph 17 of Part 2 of Schedule 2 (Conditions Precedent) together with any other document entered into by any Obligor 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.

Unfunded Pension Liability” of any Plan means the amount, if any, by which the value of the accumulated plan benefits under such Plan, determined on a plan termination basis in accordance with actuarial assumptions at such time consistent with those prescribed by the PBGC for purposes of section 4044 of ERISA, exceeds the fair market value of all plan assets allocable to such liabilities under Title IV of ERISA (excluding any accrued but unpaid contributions).

Unpaid Sum” means any sum due and payable but unpaid by an Obligor under the Finance Documents.

US” means the United States of America.

 

43


US Bankruptcy Code” means Title 11 of The United States Code (entitled “Bankruptcy”), as amended from time to time and as now or hereafter in effect, or any successor thereto.

US Obligor” means any Obligor that is incorporated or organised under the laws of the United States of America, any state or territory thereof or the District of Columbia.

US Tax Obligor” means:

 

  (a)

a Borrower which is resident for tax purposes in the US; or

 

  (b)

an Obligor some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.

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 1 of Schedule 3 (Requests and Notices).

VAT” means:

 

  (a)

any value added tax imposed by the Value Added Tax Act 1994;

 

  (b)

any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and

 

  (c)

any other tax of a similar nature, whether imposed in the United Kingdom or in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraphs (a) or (b) above, or imposed elsewhere.

 

1.2

Construction

 

  (a)

Unless a contrary indication appears, a reference in this Agreement to:

 

  (i)

the “Agent”, the “Arranger”, any “Finance Party”, any “Hedge Counterparty”, any “Fronting Bank”, any “Lender”, 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 to, or of, its rights and/or obligations under the Finance Documents and, in the case of the Security Agent, any 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 or, if not so agreed, is in the form specified by 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)

a “group of Lenders” includes all the Lenders;

 

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  (vi)

guarantee” means (other than for the purposes of the definition of “Letter of Credit” and 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;

 

  (vii)

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;

 

  (viii)

the “Interest Period” of a Letter of Credit shall be construed as a reference to the Term of that Letter of Credit;

 

  (ix)

a Lender’s “cost of funds” in relation to its participation in a Loan is a reference to the average cost (determined either on an actual or a notional basis) which that Lender would incur if it were to fund, from whatever source(s) it may reasonably select, an amount equal to the amount of that participation in that Loan for a period equal in length to the Interest Period of that Loan;

 

  (x)

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;

 

  (xi)

a “person” includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership, any governmental or other entity (whether or not having separate legal personality);

 

  (xii)

a “regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law, but if not having the force of law, being one with which it is the practice of the relevant person to comply) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;

 

  (xiii)

a Utilisation made or to be made to a Borrower includes a Letter of Credit issued on its behalf;

 

  (xiv)

a provision of law is a reference to that provision as amended or re-enacted; and

 

  (xv)

a time of day is a reference to London time.

 

  (b)

The determination of the extent to which a rate is “for a period equal in length” to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.

 

  (c)

Section, Clause and Schedule headings are for ease of reference only.

 

  (d)

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.

 

  (e)

A Borrower providing “cash cover” or “cash collateral” (as such terms are used interchangeably in this Agreement) for a Letter of Credit means a Borrower paying an amount in the currency of the Letter of Credit to an interest-bearing account in the name of that Borrower and the following conditions being met:

 

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  (i)

the account is with the Fronting Bank for which that cash cover is to be provided;

 

  (ii)

subject to paragraph (b) of Clause 7.6 (Regulation and Consequences of Cash Cover Provided by Borrower), until no amount is or may be outstanding under that Letter of Credit, withdrawals from the account may only be made to pay the relevant Finance Party amounts due and payable to it under this Agreement in respect of that Letter of Credit; and

 

  (iii)

that Borrower has executed a security document over that account, in form and substance satisfactory to the Finance Party with which that account is held, creating a first ranking security interest over that account.

 

  (f)

A Default (other than an Event of Default) is “continuing” if it has not been remedied or waived and an Event of Default is “continuing” if it has not been waived.

 

  (g)

A Borrower “repaying” or “prepaying” a Letter of Credit means:

 

  (i)

that Borrower providing cash cover for that Letter of Credit;

 

  (ii)

the maximum amount payable under the Letter of Credit being reduced or cancelled in accordance with its terms; or

 

  (iii)

the Fronting Bank being satisfied that it has no further liability under that Letter of Credit,

and the amount by which a Letter of Credit is repaid or prepaid under paragraphs (i) and (ii) above is the amount of the relevant cash cover, reduction or cancellation.

 

  (h)

An amount borrowed includes any amount utilised by way of Letter of Credit.

 

  (i)

A Lender funding its participation in a Utilisation includes a Lender participating in a Letter of Credit.

 

  (j)

Amounts outstanding under this Agreement include amounts outstanding under or in respect of any Letter of Credit.

 

  (k)

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.

 

  (l)

A Borrower’s obligation on Utilisations becoming “due and payable” includes the Borrower repaying any Letter of Credit in accordance with paragraph (g) above.

 

  (m)

Where the Agent is referred to in this Agreement as acting “reasonably” or in a “reasonable” manner or coming to an opinion or determination that is “reasonable” (or any similar or analogous wording is used), unless it is not required to do so, this shall mean that the Agent shall, where it has in fact sought such instructions, be acting or coming to an opinion or determination on the instructions of the Majority Lenders (or any relevant group of Lenders) acting or coming to an opinion or determination on the instructions of the Majority Lenders (or any relevant group of Lenders) acting reasonably and that the Agent shall be under no obligation to determine the reasonableness of such instructions from the Majority Lenders (or any relevant group of Lenders) or whether in giving such instructions the Majority Lenders are acting in a reasonable manner.

 

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  (n)

No Default or Event of Default or breach of any representation, warranty, undertaking or other terms of a Finance Document will arise in respect of any monetary threshold being exceeded merely as the result of a subsequent change in the USD equivalent of an amount that has been converted into USD for the purpose of calculating such monetary threshold which is due to fluctuations in the exchange rate since the date on which such amount was first converted into USD (and such USD equivalent shall be calculated at the date the relevant member of the Group is making a commitment, incurring or making the relevant disposal, acquisition, investment, lease, loan, debt or guarantee or taking any other relevant action).

 

  (o)

A reference in this Agreement to a page or screen of an information service displaying a rate shall include:

 

  (i)

any replacement page of that information service which displays that rate; and

 

  (ii)

the appropriate page of such other information service which displays that rate from time to time in place of that information service,

and, if such page or service ceases to be available, shall include any other page or service displaying that rate specified by the Agent after consultation with the Parent.

 

  (p)

A reference in this Agreement to a Central Bank Rate shall include any successor rate to, or replacement rate for, that rate.

 

  (q)

Any Reference Rate Supplement relating to a currency overrides anything relating to that currency in:

 

  (iii)

Schedule 18 (Reference Rate Terms); or

 

  (iv)

any earlier Reference Rate Supplement,

provided that a Reference Rate Supplement may not effect any reduction in the Margin.

 

  (r)

A Compounding Methodology Supplement relating to the Daily Non-Cumulative Compounded RFR Rate or the Cumulative Compounded RFR Rate overrides anything relating to that rate in:

 

  (v)

Schedule 19 (Daily Non-Cumulative Compounded RFR Rate) or Schedule 20 (Cumulative Compounded RFR Rate), as the case may be; or

 

  (vi)

any earlier Compounding Methodology Supplement.

 

  (s)

Any reference in this Agreement or any other Finance Document to a merger, transfer, conveyance, disposal, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, corporation or partnership, or an allocation of assets to a series of limited liability companies, partnerships or corporations (or the unwinding of such a division or allocation), as if it were a merger, transfer, disposal, conveyance, consolidation, amalgamation, consolidation, assignment, sale or transfer, or similar term, as applicable, to, of or with a separate person. Any division of a limited liability company, corporation or partnership shall be deemed to constitute the formation of a separate person, and any such division shall constitute a separate person hereunder and under the other Finance Documents (and each division of any limited liability company that is a Subsidiary, Joint Venture or any other like term shall also constitute such a person or entity).

 

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1.3

Currency Symbols and Definitions

$”, “USD” and “dollars” denote the lawful currency of the United States of America.

£”, “GBP” and “sterling” denote the lawful currency of the United Kingdom.

”, “EUR” and “euro” denote the single currency of the Participating Member States.

 

1.4

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)

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.

 

  (c)

The Pension Trustee may, subject to this Clause 1.4 and the Third Parties Act, rely on any Clause of this Agreement which expressly confers rights on it.

 

1.5

Calculation of Commitments

For the purposes of ascertaining whether any relevant percentage of Commitments or Utilisations has been obtained under or established for the purposes of this Agreement, including, without limitation, for the purposes of establishing whether any Lender or relevant group of Lenders has given its consent or approval to any matter, or in order to determine any Lender’s share of Commitments or Utilisations, the Agent will notionally convert any Commitment or Utilisation not denominated in the Base Currency into the Base Currency at the Agent’s spot rate of exchange.

 

1.6

Guernsey Terms

 

  (a)

In this Agreement and each other Finance Document, a reference to:

 

  (i)

any analogous procedure or step” includes, without limitation, the commencement of proceedings to declare the assets or affairs of an Obligor to be en etat de désastre and/or the commencement of proceedings for the making of a preliminary vesting order in respect of any immovable property of an Obligor in saisie proceedings; and

 

  (ii)

Security” or “security interest” includes, without limitation, any hypothecation howsoever arising and any security interest created pursuant to the Security Interests (Guernsey) Law, 1993.

 

  (b)

Notwithstanding the provisions of Clause 23.5 (Guarantor Intent) and Clause 23.6 (Immediate Recourse), each Guarantor hereby irrevocably waives and abandons any right it has or may at any time have under the existing or future laws of Guernsey pursuant to the principle of “droit de discussion” or otherwise to require that recourse be had to the assets of any other person before any action is taken hereunder against it and further irrevocably waives and abandons any right it has or may have at any time under the existing or future laws of Guernsey pursuant to the principle of “droit de division” or otherwise to require that any person be made a party to any proceedings or that its liability be divided or apportioned with any person or reduced in any manner whatsoever.

 

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1.7

Dutch Terms

In this Agreement, where it relates to an Obligor incorporated in the Netherlands or the context so requires, a reference to:

 

  (a)

“the Netherlands” means the European part of the Kingdom of the Netherlands and Dutch means in or of the Netherlands;

 

  (b)

works council means each works council (ondernemingsraad) or central or group works council (centrale of groeps ondernemingsraad) within the meaning of the Works Councils Act of the Netherlands (Wet op de ondernemingsraden) having jurisdiction over that person;

 

  (c)

a “necessary action to authorise includes any action required to comply with the Works Councils Act of the Netherlands (Wet op de ondernemingsraden), followed by a neutral or positive advice (advies) from the works council of that person which, if conditionally contains, conditions which can reasonably be complied with and would not cause and are not reasonably likely to cause a breach of any term of any Transaction Document;

 

  (d)

financial assistance includes any act contemplated by Section 2:98c of the Dutch Civil Code;

 

  (e)

constitutional documents means the articles of association (statuten) and deed of incorporation (akte van oprichting) and an up-to-date extract of registration of the Trade Register of the Dutch Chamber of Commerce;

 

  (f)

a “security interest or “security includes any mortgage (hypotheek), pledge (pandrecht), retention of title arrangement (eigendomsvoorbehoud), right of retention (recht van retentie), right to reclaim goods (recht van reclame) and any right in rem (beperkt recht) created for the purpose of granting security (goederenrechtelijke zekerheid);

 

  (g)

a “winding-up, “administration or “dissolution includes declared bankrupt (failliet verklaard) or dissolved (ontbonden);

 

  (h)

a “moratorium includes (voorlopige) surseance van betaling and a “moratorium is declared includes (voorlopige) surseance verleend;

 

  (i)

any “procedure or step taken in connection with insolvency proceedings includes that person having filed a notice under Section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990) or Section 60 of the Social Insurance Financing Act of the Netherlands (Wet Financiering Sociale Verzekeringen) in conjunction with Section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990);

 

  (j)

a “liquidator”, “receiver”, “administrative receiver”, “administrator”, “compulsory manager” or “other similar officer” includes a curator, a beoogd curator, a bewindvoerder, a beoogd bewindvoerder, a herstructureringsdeskundige or an observatory;

 

  (k)

a “reorganisation” in the context of insolvency or insolvency proceedings includes statutory proceedings for the restructuring of debt (akkoordprocedure) under the Dutch Bankruptcy Act (Faillissementswet);

 

  (l)

a “composition” includes an akkoord within the meaning the Dutch Bankruptcy Act (Faillissementswet); and

 

  (m)

an “attachment includes a beslag.

 

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1.8

Hungarian Terms

In this Agreement, where it relates to Frank’s International Hungary Kft.or any Obligor or any of its assets located in Hungary, and unless the contrary intention appears, a reference to:

 

  (a)

a “winding-up”, “administration”, “liquidation”, “bankruptcy” or “dissolution” includes the filing of a petition for a bankruptcy (“csődeljárás“), liquidation, (“felszámolási eljárás“), involuntary de-registration procedure (“kényszertörlési eljárás“) or solvent liquidation (“végelszámolási eljárás“);

 

  (b)

the term “administrator”, “liquidator”, “provisional liquidator” “receiver”, “administrative receiver”, “compulsory manager”, “bankruptcy trustee” or “supervisor” includes any and each of these: “felszámoló”, “vagyonfelügyelő”, “ideiglenes vagyonfelügyelő”, “végelszámoló” or other similar officer;

 

  (c)

being “insolvent” includes being “fizetésképtelen” or being in imminent insolvency “fizetésképtelenséggel fenyegető helyzet”;

 

  (d)

a “moratorium” includes “moratórium”, “ideiglenes fizetési haladék” or “fizetési haladék”;

 

  (e)

creditors’ process” means a court enforcement procedure (bírósági végrehajtás) or an out-of-court enforcement procedure (bíróságon kívüli végrehajtás);

 

  (f)

expropriation”, “attachment”, “sequestration”, “distress”, “execution” or any analogous process all forms of “bírósági végrehajtás” (including “foglalás”, “zár alá vétel”) or “kisajátítás”;

 

  (g)

a “lien”, “security” or “security interest” includes “zálog”, “kézi zálog”, “jelzálog”, “óvadék”, “kezesség”, “garancia”, “biztositéki biztosítéki célú engedményezés”, “biztosítéki célú vételi jog” and any other type of security in rem or agreement having a similar effect and any transfer of title by way of security;

 

  (h)

constitutional documents” include its up-to-date (restated) articles of association (társasági szerződés), deed of foundation (alapító okirat) or members list (tagjegyzék), if available;

 

  (i)

corporate reconstruction” includes “társaság működési formájának megváltoztatása”, “egyesülés”, “átalakulás” and “szétválás”; and

 

  (j)

the term “share” or “share capital” includes quotas or business quotas (üzletrész) of a Hungarian limited liability company (Kft., or korlátolt felelősségű társaság) and other equivalent ownership interests and “shareholder” shall be construed accordingly.

 

1.9

Luxembourg Terms

Unless a contrary intention appears, any reference in this Agreement to:

 

  (a)

a “winding-up”, “administration”, “reorganisation”, “insolvency” or “dissolution” includes bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de faillite), moratorium or suspension of payments (sursis de paiement); controlled management (gestion contrôlée) and general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally;

 

  (b)

a “receiver, “administrative receiver”, “administrator”, “trustee”, “custodian” or similar “officer” includes a juge délégué, commissaire, juge-commissaire, mandataire ad hoc administrateur provisoire, liquidateur or curateur;

 

  (c)

a “lien” or “security interest” includes any hypothéque, nantissement, gage, privilège, sûreté réelle, droit de rétention, promesse and any type of security in rem (sûreté réelle) or agreement or arrangement having a similar effect and any transfer of title (transfert à titre de garantie) by way of security;

 

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  (d)

a “guarantee” includes any guarantee which is independent from the debt to which it relates and excludes any suretyship (cautionnement) within the meaning of articles 2011 and seq. of the Luxembourg Civil Code;

 

  (e)

a person being “unable to pay its debts” includes that person being in a state of cessation of payments (cessation de paiements) or which has lost its creditworthiness (ébranlement de crédit);

 

  (f)

constitutional documents” includes its up-to-date (restated) articles of association (statuts coordonnés);

 

  (g)

a “director” and/or a “manager” includes a gérant or an administrateur; and

 

  (h)

an “attachment” includes a saisie.

 

1.10

Australian Banking Code of Practice

The parties agree that the Australian Banking Code of Practice (published by the Australian Bankers’ Association, as amended, revised or amended and restated from time to time) does not apply to the Finance Documents, nor the transactions under them.

 

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Section 2

The Facilities

 

2.

The Facilities

 

2.1

The Facilities

 

  (a)

Subject to the terms of this Agreement, the Lenders make available:

 

  (i)

a multicurrency revolving loan facility in an aggregate amount the Base Currency Amount of which is equal to the Total Facility A Commitments; and

 

  (ii)

a multicurrency letter of credit facility in an aggregate amount the Base Currency Amount of which is equal to the Total Facility B Commitments.

 

  (b)

Facility A and Facility B will be available to all the Borrowers.

 

2.2

Incremental Facilities

One or more Incremental Facilities may be established and made available pursuant to Clause 9 (Establishment of Incremental Facilities).

 

2.3

Increase

 

  (a)

The Parent may by giving prior notice to the Agent by no later than the date falling five Business Days after the effective date of a cancellation of:

 

  (i)

the Available Commitments of a Defaulting Lender in accordance with Clause 11.7 (Right of Cancellation in Relation to a Defaulting Lender); or

 

  (ii)

the Commitments of a Lender in accordance with:

 

  (A)

Clause 11.1 (Illegality); or

 

  (B)

paragraph (a) of Clause 11.5 (Right of Cancellation and Repayment in Relation to a Single Lender or Issuing Bank),

request that the Commitments relating to any Facility be increased (and the Commitments relating to that Facility shall be so increased) in an aggregate amount in the Base Currency of up to the amount of the Available Commitments or Commitments relating to that Facility so cancelled as follows:

 

  (iii)

the increased Commitments will be assumed by one or more Eligible Institutions (each an “Increase Lender”) each of which confirms in writing (whether in the relevant Increase Confirmation or otherwise) its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender in respect of those Commitments;

 

  (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 in respect of that part of the increased Commitments which it is to assume;

 

  (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 in respect of that part of the increased Commitments which it is to assume;

 

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  (vi)

the Commitments of the other Lenders shall continue in full force and effect; and

 

  (vii)

any increase in the Commitments relating to a Facility shall, subject to the conditions set out in paragraphs (g) and (h) below, take effect on the date specified by the Parent in the notice referred to above or any later date on which the Agent executes an otherwise duly completed Increase Confirmation delivered to it by the relevant Increase Lender.

 

  (b)

The Agent shall, subject to paragraph (c) below, as soon as reasonably practicable after receipt by it of a duly completed Increase Confirmation appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Increase Confirmation.

 

  (c)

The Agent shall only be obliged to execute an Increase Confirmation delivered to it by an Increase Lender once it is satisfied that it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Lender.

 

  (d)

An increase in the Commitments relating to a Facility will only be effective if the Increase Lender enters into the documentation required for it to accede as a party to the Intercreditor Agreement.

 

  (e)

The consent of the Fronting Bank is required for an increase in the Total Facility B Commitments.

 

  (f)

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 in accordance with this Agreement and that it is bound by that decision to the same extent as it would have been had it been an Original Lender.

 

  (g)

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.

 

  (h)

The Increase Lender shall, on the date upon which the increase takes effect, pay to the Agent (for its own account) a fee in an amount equal to the fee which would be payable under Clause 29.4 (Assignment or Transfer Fee) if the increase was a transfer pursuant to Clause 29.6 (Procedure for Transfer) and if the Increase Lender was a New Lender.

 

  (i)

The Obligors’ Agent may pay, or cause to be paid, to the Increase Lender a fee in the amount and at the times agreed between the Obligors’ Agent and the Increase Lender in a Fee Letter.

 

  (j)

Neither the Agent nor any Lender shall have any obligation to find an Increase Lender and in no event shall any Lender whose Commitment is replaced by an Increase Lender be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents.

 

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  (k)

Clause 29.5 (Limitation of Responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.3 in relation to an Increase Lender as if references in that Clause to:

 

  (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”.

 

2.4

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 is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party’s participation in a Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor.

 

  (c)

A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.

 

2.5

Obligors’ Agent

 

  (a)

Each Obligor (other than the Obligors’ Agent) by its execution of this Agreement or an Accession Deed irrevocably appoints, to the extent legally permissible, Expro Holdings UK 2 Limited (acting through one or more authorised signatories) to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:

 

  (i)

Expro Holdings UK 2 Limited 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 and Selection Notices), to agree to any Incremental Facility Terms and to deliver any Incremental Facility Notice, 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 Expro Holdings UK 2 Limited,

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.

 

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  (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.

 

2.6

Lender Affiliates and Facility Office

 

  (a)

In respect of a Utilisation to a particular Borrower (a “Designated Utilisation”) a Lender (a “Designating Lender”) may at any time and from time to time designate (by written notice to the Agent and the Parent):

 

  (i)

a substitute Facility Office from which it will make Designated Utilisations (a “Substitute Facility Office”); or

 

  (ii)

nominate an Affiliate to act as the Lender of Designated Utilisations (a “Substitute Affiliate Lender”).

 

  (b)

A notice to nominate a Substitute Affiliate Lender must be in the form set out in Schedule 17 (Form of Substitute Affiliate Lender Designation Notice) and be countersigned by the relevant Substitute Affiliate Lender confirming it will be bound as a Lender under this Agreement and the Intercreditor Agreement in respect of the Designated Utilisations in respect of which it acts as Lender.

 

  (c)

The Designating Lender will act as the representative of any Substitute Affiliate Lender it nominates for all administrative purposes under this Agreement. The Obligors, the Agent, the Security Agent and the other Finance Parties will be entitled to deal only with the Designating Lender, except that payments will be made in respect of Designated Utilisations to the Facility Office of the Substitute Affiliate Lender. In particular the Commitments of the Designating Lender will not be treated as reduced by the introduction of the Substitute Affiliate Lender for voting purposes under this Agreement or the other Finance Documents.

 

  (d)

Save as mentioned in paragraph (c) above, a Substitute Affiliate Lender will be treated as a Lender for all purposes under the Finance Documents and having a Commitment equal to the principal amount of all Designated Utilisations in which it is participating if and for so long as it continues to be a Substitute Affiliate Lender under this Agreement.

 

  (e)

A Designating Lender may revoke its designation of an Affiliate as a Substitute Affiliate Lender by notice in writing to the Agent and the Parent provided that such notice may only take effect when there are no Designated Utilisations outstanding to the Substitute Affiliate Lender. Upon such Substitute Affiliate Lender ceasing to be a Substitute Affiliate Lender the Designating Lender will automatically assume (and be deemed to assume without further action by any Party) all rights and obligations previously vested in the Substitute Affiliate Lender.

 

  (f)

If a Designating Lender designates a Substitute Facility Office or Substitute Affiliate Lender in accordance with this Clause:

 

  (i)

any Substitute Affiliate Lender shall be treated for the purposes of paragraph (d)(i) of Clause 18.2 (Tax Gross-up) as having become a Lender on the date of this Agreement; and

 

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  (ii)

the provisions of paragraph (d) of Clause 29.3 (Other Conditions of Assignment or Transfer) shall not apply to or in respect of any Substitute Facility Office or Substitute Affiliate Lender.

 

  (g)

If:

 

  (i)

a Designating Lender designates a Substitute Facility Office or Substitute Affiliate Lender in accordance with this Clause; and

 

  (ii)

as a result of circumstances existing at the date the designation occurs, an Obligor would be obliged to make a payment to the Substitute Affiliate Lender or Lender acting through a Substitute Facility Office under Clause 18.2 (Tax Gross-Up and Indemnities) or Clause 19 (Increased Costs),

then, the Substitute Affiliate Lender or Designating Lender acting through a Substitute Facility Office is only entitled to receive payment under those Clauses to the same extent as the Designating Lender would have been if the designation had not occurred.

 

3.

Purpose

 

3.1

Purpose

 

  (a)

Each Borrower shall apply all amounts borrowed by it under Facility A towards the general corporate and working capital purposes of the Group, rolling-over (or refinancing or back-stopping) existing ancillary facilities (other than the ancillary facilities made by way of letter of credit and/or guarantee facilities), as well as the funding of acquisitions and capital expenditures of the Group, in accordance with the terms of this Agreement. For the avoidance of doubt, no Facility A Loan shall be made available to fund any dividends.

 

  (b)

Each Borrower shall apply all amounts borrowed by it under Facility B towards the general corporate and working capital purposes of the Group, as well as rolling-over (or refinancing or back-stopping) existing ancillary facilities (which are made by way of letter of credit and/or guarantee facilities) or Existing Guarantees, in accordance with the terms of this Agreement. For the avoidance of doubt, no Facility B Letter of Credit shall be made available to fund any dividends.

 

  (c)

Each Borrower shall apply all amounts borrowed by it under an Incremental Facility for the purpose(s) specified in the Incremental Facility Notice relating to that Incremental Facility which shall be the same as the purpose of Facility A or Facility B, as applicable.

 

3.2

Monitoring

No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.

 

4.

Conditions of Utilisation

 

4.1

Initial Conditions Precedent

 

  (a)

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 all of the documents and other evidence listed in Part 1 of Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Agent. The Agent shall notify the Parent and the Lenders promptly upon being so satisfied.

 

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  (b)

Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (a) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.

 

  (c)

The Lenders will only be obliged to comply with Clause 5.4 (Lenders Participation) in relation to any Incremental Facility Loan if on or before the Utilisation Date for that Loan, the Agent has received all of the Incremental Facility Conditions Precedent relating to the relevant Incremental Facility (if any) in form and substance satisfactory to the Agent. The Agent shall notify the Parent and the Lenders promptly upon being so satisfied.

 

  (d)

Other than to the extent that the Incremental Facility Majority Lenders under the relevant Incremental Facility notify the Agent in writing to the contrary before the Agent gives a notification described in paragraph (c) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.

 

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 Event of Default is continuing or would result from the proposed Loan, and in the case of any other Utilisation, no Default is continuing or would result from the proposed Utilisation; and

 

  (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 are true and correct.

 

4.3

Conditions Relating to Optional Currencies

 

  (a)

A currency will constitute an Optional Currency in relation to a Revolving Facility Utilisation if:

 

  (i)

it is readily available in the amount required and freely convertible into the Base Currency in the wholesale market for that currency on the Quotation Day and the Utilisation Date for that Utilisation; and

 

  (ii)

it is GBP, EUR or has been approved by the Agent (acting on the instructions of all the Lenders) on or prior to receipt by the Agent of the relevant Utilisation Request for that Utilisation.

 

  (b)

A currency will constitute an Optional Currency in relation to an Incremental Facility if it is specified in the Incremental Facility Notice relating to that Incremental Facility.

 

  (c)

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 the Lenders have granted their approval; and

 

  (ii)

if approval has been granted, the minimum amount for any subsequent Utilisation in that currency.

 

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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:

 

  (i)

more than 20 (twenty) Facility A Loans (other than Incremental Facility Loans) would be outstanding; or

 

  (ii)

more than 10 (ten) Incremental Facility Loans would be outstanding.

 

  (b)

A Borrower (or the Parent) may not request that a Facility A Loan or an Incremental Facility Loan be divided.

 

  (c)

Any Loan made by a single Lender under Clause 8.2 (Unavailability of a Currency) shall not be taken into account in this Clause 4.4.

 

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Section 3

Utilisation

 

5.

Utilisation - Loans

 

5.1

Delivery of a Utilisation Request

A Borrower (or the Parent on its behalf) may utilise a 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)

it identifies the Facility to be utilised;

 

  (ii)

the proposed Utilisation Date is a Business Day within the Availability Period applicable to that Facility;

 

  (iii)

the currency and amount of the Utilisation comply with Clause 5.3 (Currency and Amount); and

 

  (iv)

the proposed Interest Period complies with Clause 15 (Interest Periods).

 

  (b)

Only one Utilisation may be requested in each Utilisation Request.

 

5.3

Currency and Amount

 

  (a)

The currency specified in a Utilisation Request must be:

 

  (i)

in relation to Facility A, the Base Currency or an Optional Currency;

 

  (ii)

in relation to Facility B, the Base Currency or an Optional Currency; and

 

  (iii)

in relation to an Incremental Facility, the Base Currency or an Optional Currency.

 

  (b)

The amount of the proposed Utilisation must be:

 

  (i)

for Facility A:

 

  (A)

if the currency selected is the Base Currency, a minimum of USD1,000,000 or, if less, the Available Facility; or

 

  (B)

if the currency selected is GBP or EUR, a minimum of GBP1,000,000 or EUR1,000,000, respectively, or, if less, the Available Facility;

 

  (C)

if the currency selected is any other Optional Currency, the minimum amount specified by the Agent pursuant to paragraph (c)(ii) of Clause 4.3 (Conditions Relating to Optional Currencies) or, if less, the Available Facility; or

 

  (ii)

for any Incremental Facility, the minimum amounts and (if applicable) integral multiples set out in the related Incremental Facility Notice.

 

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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)

Other than as set out in paragraph (c) below, 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 accordance with Clause 35.1 (Payments to the Agent) by the Specified Time.

 

5.5

Limitations on Utilisations

 

  (a)

The maximum aggregate Base Currency Amount of all Facility B Letters of Credit shall not exceed USD70,000,000.

 

  (b)

No Incremental Facility shall be utilised before each of Facility A and Facility B has been utilised.

 

5.6

Cancellation of Commitment

 

  (a)

Facility A Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period for Facility A.

 

  (b)

Facility B Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period for Facility B.

 

  (c)

The Incremental Facility Commitments relating to an Incremental Facility which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period for that Incremental Facility.

 

6.

Utilisation - Letters of Credit

 

6.1

Facility B and Incremental Facilities

 

  (a)

Facility B may be utilised by way of Facility B Letters of Credit and an Incremental Facility may be utilised by way of Incremental Facility Letters of Credit.

 

  (b)

Other than Clause 5.5 (Limitations on Utilisations), Clause 5 (Utilisation - Loans) does not apply to utilisations by way of Facility B Letters of Credit or Incremental Facility Letters of Credit.

 

  (c)

In determining the amount of the Available Facility and a Lender’s L/C Proportion of a proposed Letter of Credit (under Facility B or an Incremental Facility) for the purposes of this Agreement the Available Commitment of a Lender will be calculated ignoring any cash cover provided for outstanding Letters of Credit.

 

6.2

Delivery of a Utilisation Request for Letters of Credit

A Borrower (or the Parent on its behalf) may request a Letter of Credit to be issued for itself (including for and on behalf of a Subsidiary) by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time. For the avoidance of doubt, the obligations of the Borrower (or the Parent) under this Agreement shall not be affected in any way whatsoever when a Letter of Credit is issued for and on behalf of a Subsidiary and that Subsidiary shall have no rights, remedies nor obligations under this Agreement. This Agreement does not purport to regulate the relations between any Borrower or the Parent and their Subsidiaries for and on behalf of which a Letter of Credit is issued pursuant to this Agreement.

 

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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 and if the Letter of Credit is issued for that Borrower for and on behalf of a Subsidiary, that Borrower shall (a) identify the relevant Subsidiary; (b) supply such documentation and other evidence in respect of the underlying transaction of that Letter of Credit, as is reasonably requested by the Fronting Bank in order for the Fronting Bank to carry out and be satisfied it has complied with all necessary anti-money laundering and financial crime prevention checks under all applicable laws and regulations; and (c) if such Subsidiary is not a wholly-owned member of the Group (A) supply the identity of all minority shareholders if their interests in that Subsidiary represent (in aggregate) less than 10% of its issued capital stock; and (B) supply such documentation and other evidence in respect of the minority shareholders if their interests in that Subsidiary represent (in aggregate) 10% or more of its issued capital stock, as such documentation or other evidence is reasonably requested by the Fronting Bank in order for the Fronting Bank to carry out and be satisfied it has complied with all necessary “know your customer” or similar identification checks under all applicable laws and regulations;

 

  (c)

it specifies the Fronting Bank which has agreed to issue the Letter of Credit;

 

  (d)

the proposed Utilisation Date is a Business Day within the Availability Period applicable to Facility B or the Incremental Facility, as applicable;

 

  (e)

the currency and amount of the Letter of Credit comply with Clause 6.4 (Currency of Letters of Credit);

 

  (f)

the form of Letter of Credit is attached;

 

  (g)

(A) in relation to a Facility B Letter of Credit, the Expiry Date of the Facility B Letter of Credit is specified and which may fall on any date requested by a Borrower and which may be a date after the Termination Date applicable to Facility B, provided that the requirements set out in Clause 6.5 (Term of Facility B Letters of Credit) will be met on the Termination Date of Facility B; and (B) in relation to any Incremental Facility Letter of Credit, the Expiry Date of the Incremental Facility Letter of Credit shall be set out in accordance with the terms of the Incremental Facility Notice;

 

  (h)

the delivery instructions for the Letter of Credit are specified;

 

  (i)

it specifies the identity of the beneficiary of the Letter of Credit which is not subject to any applicable Sanctions Laws and Regulations nor is a Sanctions Restricted Person; and

 

  (j)

in respect of a Letter of Credit which is a Rollover Letter of Credit, it attaches: (A) a copy of the notice of cancellation delivered to the issuing bank of the Existing Guarantee and (B) a copy of the Existing Guarantee, being cancelled pursuant to the notice referred to in paragraph (j)(A) above.

 

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6.4

Currency of Letters of Credit

The currency specified in a Utilisation Request in respect of Facility B or an Incremental Facility must be the Base Currency or an Optional Currency.

 

6.5

Term of Letters of Credit

 

  (a)

The Fronting Bank will be released from its obligations under a Letter of Credit on the date (if any) notified by the beneficiary of that Letter of Credit to the Fronting Bank as the date upon which the obligations of the Fronting Bank under such Letter of Credit are released.

 

  (b)

Unless previously released under paragraph (a) above, on the Expiry Date the obligations of the Fronting Bank under the relevant Letter of Credit will cease with no further liability on the part of the Fronting Bank except for any demand for payment (in a form agreed between the Fronting Bank and the Parent) and validly presented under that Letter of Credit that remains unpaid.

 

  (c)

Notwithstanding anything to the contrary in this Agreement, at any time prior to the Termination Date in respect of Facility B or the relevant Incremental Facility, a Borrower may request that a Facility B Letter of Credit or an Incremental Facility Letter of Credit be issued with an Expiry Date that falls after the Termination Date in respect of Facility B or the relevant Incremental Facility.

 

  (d)

The Fronting Bank shall issue such Letter of Credit, provided that, on (and with effect from) the Termination Date in respect of Facility B or the relevant Incremental Facility, the Borrower provides cash collateral or a counter-indemnity to the Fronting Bank (in each case, in the manner set out in paragraphs (e) and (f) below, as applicable). The maximum Term of such cash collateralised or counter-indemnified (as applicable) Letter of Credit shall not exceed 66 months from the date of issuance of such Letter of Credit. For the avoidance of doubt, no Letter of Credit shall be required to be cash collateralised or counter-indemnified (as applicable) prior to the Termination Date in respect of Facility B or the relevant Incremental Facility (as applicable).

 

  (e)

Cash collateral shall be provided by the relevant Borrower in favour of the Fronting Bank on the Termination Date in respect of Facility B or the relevant Incremental Facility, in an amount equal to 105 per cent. of the maximum amount payable under the relevant Letter of Credit, or if one or more drawings have been made under the relevant Letter of Credit, 105 per cent. of the highest of the face value of, and the maximum amount capable of being drawn under, that Letter of Credit at that time following such drawing(s) of that Letter of Credit at that time. If cash collateral is provided in accordance with the terms of this Agreement, the relevant Letter of Credit will be deemed to have been repaid on the Termination Date.

 

  (f)

Counter-indemnity shall be provided by an Acceptable Bank in favour of the Fronting Bank on the Termination Date in respect of Facility B or the relevant Incremental Facility, in an amount equal to 105 per cent. of the maximum amount payable under the relevant Letter of Credit, or if one or more drawings have been made under the relevant Letter of Credit, 105 per cent. of the highest of the face value of, and the maximum amount capable of being drawn under, that Letter of Credit at that time following such drawing(s) of that Letter of Credit at that time. If counter-indemnity is provided in accordance with the terms of this Agreement, the relevant Letter of Credit will be deemed to have been repaid on the Termination Date.

 

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  (g)

If the Borrower fails to provide the cash collateral or the counter-indemnity on the Termination Date in respect of Facility B or the relevant Incremental Facility in accordance with the terms of this Agreement, the indemnification obligations of each Borrower and each Lender to the Fronting Bank shall remain in effect in respect of the relevant Letters of Credit and, for the avoidance of doubt, the Majority Lenders will retain all rights and remedies available to them under Clause 28 (Events of Default) in respect of such failure to comply.

 

6.6

Issue of Letters of Credit

 

  (a)

If the conditions set out in this Agreement have been met, the Fronting Bank shall issue the Letter of Credit on the Utilisation Date.

 

  (b)

Subject to Clause 4.1 (Initial Conditions Precedent), the Fronting Bank will only be obliged to comply with paragraph (a) above, 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 6.7 (Renewal of a Letter of Credit) no Event of Default is continuing or would result from the proposed Utilisation and, in the case of any other Utilisation, no Default is continuing or would result from the proposed Utilisation; and

 

  (ii)

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 are true and correct.

 

  (c)

The amount of each Lender’s participation in each Letter of Credit will be equal to its L/C Proportion.

 

  (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 Fronting 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 Fronting Bank has no duty to enquire of any person whether or not any of the conditions set out in paragraph (b) above have been met. The Fronting Bank may assume that those conditions have been met unless it is expressly notified to the contrary by the Agent. The Fronting Bank will have no liability to any person for issuing a Letter of Credit based on such assumption.

 

  (f)

The Fronting Bank is solely responsible for the form of the Letter of Credit that it issues. The Agent has no duty to monitor the form of that document.

 

  (g)

Subject to paragraph (i) of Clause 32.7 (Rights and Discretions), each of the Fronting Bank and the Agent shall provide the other with any information reasonably requested by the other that relates to a Letter of Credit and its issue.

 

  (h)

The Fronting Bank may issue a Letter of Credit in the form of a SWIFT message or other form of communication customary in the relevant market but has no obligation to do so.

 

6.7

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.

 

  (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.

 

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  (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)

Subject to paragraph (e) below, if the conditions set out in this Agreement have been met, the Fronting Bank shall amend and re-issue any Letter of Credit pursuant to a Renewal Request.

 

  (e)

Where a new Letter of Credit is to be issued to replace by way of renewal an existing Letter of Credit, the Fronting Bank is not required to issue that new Letter of Credit until:

 

  (i)

the Letter of Credit being replaced has been returned to the Fronting Bank or the Fronting Bank is satisfied either that it will be returned to it or otherwise that no liability can arise under it; and

 

  (ii)

the Borrower (or the Parent on its behalf) has paid to the Fronting Bank an amendment fee as set out in and in accordance with paragraph (e) of Clause 17.5 (Fees Payable in respect of Facility B Letters of Credit) or, as applicable, in accordance with the terms of the relevant Incremental Facility Notice.

 

6.8

Reduction of a Letter of Credit

 

  (a)

If, on the proposed Utilisation Date of a Letter of Credit, any Lender under Facility B or an Incremental Facility is a Non-Acceptable L/C Lender and:

 

  (i)

that Lender has failed to provide cash collateral to the Fronting Bank in accordance with Clause 7.4 (Cash Collateral by Non-Acceptable L/C Lender and Borrowers Option to Provide Cash Cover); and

 

  (ii)

the Borrower of that proposed Letter of Credit has not exercised its right to provide cash cover to the Fronting Bank in accordance with paragraph (g) of Clause 7.4 (Cash Collateral by Non-Acceptable L/C Lender and Borrowers Option to Provide Cash Cover),

the Fronting 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 Fronting Bank) in respect of that Letter of Credit for the purposes of the Finance Documents.

 

  (b)

The Fronting Bank shall notify the Agent and the Parent of each reduction made pursuant to this Clause 6.8.

 

  (c)

This Clause 6.8 shall not affect the participation of each other Lender in that Letter of Credit.

 

6.9

Revaluation of Letters of Credit

 

  (a)

If any Letters of Credit are denominated in an Optional Currency, the Agent shall at six monthly intervals after the date of the Letter of Credit 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.

 

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  (b)

The Parent shall, if requested by the Agent within three days of any calculation under paragraph (a) above, ensure that within three Business Days sufficient Utilisations under Facility B or an Incremental Facility, as applicable, are prepaid to prevent the Base Currency Amount of the Utilisations under Facility B or an Incremental Facility, as applicable, exceeding the Total Facility B Commitments or Total Incremental Facility Commitments, as applicable, following any adjustment to a Base Currency Amount under paragraph (a) above.

 

6.10

Reduction or Expiry of Letter of Credit

If the amount of any Letter of Credit is wholly or partially reduced or it is repaid or prepaid or it expires prior to its Expiry Date, the Fronting Bank and the relevant Borrower that requested (or on behalf of which the Parent requested) the issue of that Letter of Credit shall promptly notify the Agent of the details upon becoming aware of them.

 

6.11

Appointment of Additional Fronting Banks

Any Lender which has agreed to the Parent’s request to be a Fronting Bank for the purposes of this Agreement shall become a Party as a “Fronting Bank” upon satisfying the Agent and the Parent that it has so agreed to be a Fronting Bank.

 

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 Fronting 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 immediately on demand pay to the Agent for the Fronting Bank an amount equal to the amount of any claim.

 

  (c)

Each Borrower acknowledges that the Fronting 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.

 

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7.3

Indemnities

 

  (a)

Each Borrower shall immediately on demand indemnify the Fronting Bank against any cost, loss or liability incurred by the Fronting Bank (otherwise than by reason of the Fronting Bank’s gross negligence or wilful misconduct, as determined by a court of competent jurisdiction in a final non-appealable judgment) in acting as the Fronting Bank under any Letter of Credit requested by (or on behalf of) that Borrower (including, without limitation, as a result of the relevant Borrower’s failure to provide cash collateral or a counter-indemnity, as required pursuant to paragraph (d) of Clause 6.5 (Term of Facility B Letters of Credit)).

 

  (b)

Each Lender shall (according to its L/C Proportion) immediately on demand indemnify the Fronting Bank against any cost, loss or liability incurred by the Fronting Bank (otherwise than by reason of the Fronting Bank’s gross negligence or wilful misconduct, as determined by a court of competent jurisdiction in a final non-appealable judgment) in acting as the Fronting Bank under any Letter of Credit (unless the Fronting Bank has been reimbursed by an Obligor pursuant to a Finance Document).

 

  (c)

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 Fronting Bank under this Clause 7.3 in respect of that Letter of Credit.

 

  (d)

The obligations of each Lender or Borrower under this Clause 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.

 

  (e)

If a Borrower has provided cash cover in respect of a Lender’s participation in a Letter of Credit, the Fronting Bank shall seek reimbursement from that cash cover before making a demand of that Lender under paragraph (b) above. Any recovery made by the Fronting Bank pursuant to that cash cover will reduce that Lender’s liability under paragraph (b) above.

 

  (f)

The obligations of any Lender or Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (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 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;

 

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  (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 and Borrower’s Option to Provide Cash Cover

 

  (a)

If, at any time, a Lender under Facility B or an Incremental Facility is a Non-Acceptable L/C Lender, the Fronting 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 Business Days after the request by the Fronting Bank, an amount equal to that Lender’s L/C Proportion of:

 

  (i)

the outstanding amount of a Letter of Credit; or

 

  (ii)

in the case of a proposed Letter of Credit, the amount of that proposed 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 Fronting 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 Fronting Bank, as collateral for any amounts due and payable under this Agreement by that Lender to the Fronting Bank in respect of that Letter of Credit.

 

  (c)

Subject to paragraph (f) below, withdrawals from such an account may only be made to pay the Fronting Bank amounts due and payable to it under this Agreement by the Non-Acceptable L/C Lender in respect of that Letter of Credit until no amount is or may be outstanding under that Letter of Credit.

 

  (d)

Each Lender under Facility B or an Incremental Facility 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 2.3 (Increase), Clause 9 (Establishment of Incremental Facilities) or Clause 29 (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, an Incremental Facility Lender Certificate or in an Increase Confirmation to that effect will constitute a notice under paragraph (i) above to the Agent and, upon delivery in accordance with Clause 29.8 (Copy of Transfer Certificate, Assignment Agreement or Increase Confirmation to Parent) or Clause 9.5 (Conditions to Establishment) as applicable, to the Parent.

 

  (e)

Any notice received by the Agent pursuant to paragraph (d) above shall constitute notice to the Fronting Bank of that Lender’s status and the Agent shall, upon receiving each such notice, promptly notify the Fronting Bank of that Lender’s status as specified in that notice.

 

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  (f)

Notwithstanding paragraph (c) above, a Lender which has provided cash collateral in accordance with this Clause 7.4 may, by notice to the Fronting Bank, request that an amount equal to the amount provided by it as collateral in respect of the relevant Letter of Credit (together with any accrued interest) be returned to it:

 

  (i)

to the extent that such cash collateral has not been applied in satisfaction of any amount due and payable under this Agreement by that Lender to the Fronting Bank in respect of the relevant Letter of Credit;

 

  (ii)

if:

 

  (A)

it ceases to be a Non-Acceptable L/C Lender;

 

  (B)

its obligations in respect of the relevant Letter of Credit are transferred to a New Lender in accordance with the terms of this Agreement; or

 

  (C)

an Increase Lender has agreed to undertake that Lender’s obligations in respect of the relevant Letter of Credit in accordance with the terms of this Agreement; and

 

  (iii)

if no amount is due and payable by that Lender in respect of a Letter of Credit,

and the Fronting Bank shall pay that amount to the Lender within three Business Days of that Lender’s request (and shall cooperate with the Lender in order to procure that the relevant security or collateral arrangement is released and discharged).

 

  (g)

To the extent that a Non-Acceptable L/C Lender fails to provide cash collateral (or notifies the Fronting Bank that it will not provide cash collateral) in accordance with this Clause 7.4 in respect of a proposed Letter of Credit, the Fronting Bank shall promptly notify the Parent (with a copy to the Agent) and the Borrower of that proposed Letter of Credit may, at any time before but not later than three Business Days (or such other period as agreed between the Fronting Bank and the Parent) prior to the proposed Utilisation Date of that Letter of Credit, provide cash cover to an account with the Fronting Bank in an amount equal to that Lender’s L/C Proportion of the amount of that proposed Letter of Credit.

 

7.5

Requirement for Cash Cover from Borrower

If:

 

  (a)

a Non-Acceptable L/C Lender fails to provide cash collateral (or notifies the Fronting Bank that it will not provide cash collateral) in accordance with Clause 7.4 (Cash Collateral by Non-Acceptable L/C Lender and Borrowers Option to Provide Cash Cover) in respect of a Letter of Credit that has been issued;

 

  (b)

the Fronting Bank notifies the Parent (with a copy to the Agent) that it requires the Borrower of the relevant Letter of Credit to provide cash cover to an account with the Fronting Bank in an amount equal to that Lender’s L/C Proportion of the outstanding amount of that Letter of Credit; and

 

  (c)

that Borrower has not already provided such cash cover which is continuing to stand as collateral,

then that Borrower shall provide such cash cover within three Business Days of the notice referred to in paragraph (b) above.

 

7.6

Regulation and Consequences of Cash Cover Provided by Borrower

 

  (a)

No cash cover provided by a Borrower pursuant to Clause 7.4 (Cash Collateral by Non-Acceptable L/C Lender and Borrowers Option to Provide Cash Cover) or Clause 7.5 (Requirement for Cash Cover from Borrower) may be funded out of a Revolving Facility Utilisation or an Incremental Facility Utilisation.

 

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  (b)

Notwithstanding paragraph (e) of Clause 1.2 (Construction), the relevant Borrower may request that an amount equal to the cash cover (together with any accrued interest) provided by it pursuant to Clause 7.4 (Cash Collateral by Non-Acceptable L/C Lender and Borrower’s Option to Provide Cash Cover) or Clause 7.5 (Requirement for Cash Cover from Borrower) be returned to it:

 

  (i)

to the extent that such cash cover has not been applied in satisfaction of any amount due and payable under this Agreement by that Borrower to the Fronting Bank in respect of a Letter of Credit;

 

  (ii)

if:

 

  (A)

the relevant Lender ceases to be a Non-Acceptable L/C Lender;

 

  (B)

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

 

  (C)

an Increase Lender has agreed to undertake the relevant Lender’s obligations in respect of the relevant Letter of Credit in accordance with the terms of this Agreement; and

 

  (iii)

if no amount is due and payable by the relevant Lender in respect of the relevant Letter of Credit,

and the Fronting Bank shall pay that amount to that Borrower within three Business Days of that Borrower’s request.

 

  (c)

To the extent that a Borrower has provided cash cover pursuant to Clause 7.4 (Cash Collateral by Non-Acceptable L/C Lender and Borrowers Option to Provide Cash Cover) or Clause 7.5 (Requirement for Cash Cover From Borrower), 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 (e)(ii) of Clause 1.2 (Construction)).

 

  (d)

The relevant Fronting Bank shall promptly notify the Agent of the extent to which a Borrower provides cash cover pursuant to Clause 7.4 (Cash Collateral by Non-Acceptable L/C Lender and Borrowers Option to Provide Cash Cover) or Clause 7.5 (Requirement for Cash Cover from Borrower) and of any change in the amount of cash cover so provided.

 

7.7

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.

 

7.8

Rolled Letters of Credit

Schedule 16 contains a schedule of the Rolled Letters of Credit issued prior to the Closing Date by the relevant Existing L/C Lenders listed in such schedule for the account of a Borrower. Subject to the terms of this Agreement, from and after the Closing Date:

 

  (a)

each Rolled Letter of Credit, to the extent outstanding on the Closing Date and without further action by the Borrowers, shall be:

 

  (i)

continued as a Letter of Credit under the terms of this Agreement;

 

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  (ii)

deemed to be a Letter of Credit for all purposes of this Agreement; and

 

  (iii)

subject to and governed by the terms and conditions of this Agreement;

 

  (b)

the face amount of all such Rolled Letters of Credit shall be included in the calculation of the L/C Proportion; and

 

  (c)

all liabilities of the Borrowers with respect to all such Rolled Letters of Credit shall constitute Facility B Letters of Credit (for those letters of credit set out in Part A of Schedule 16 (Rolled Letters of Credit)) or Incremental Facility Letters of Credit (for those letters of credit set out in Party B of Schedule 16 (Rolled Letters of Credit)).

 

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.

Establishment of Incremental Facilities

 

9.1

Incremental Facility Lenders

 

  (a)

The Parent shall notify the existing Lenders of its intention to establish an Incremental Facility (including the relevant information required to allow such existing Lenders to propose their terms), at least ten Business Days prior to providing any Incremental Facility Notice under paragraph (a) of Clause 9.2 (Delivery of Incremental Facility Notice) below. Upon receipt of such notification, such existing Lenders shall have the right, but not the obligation, within 5 Business Days (or such longer period as the Parent may decide) to respond to the notification with their proposed terms for the provision of the Incremental Facility (the “Offered Terms”). For the avoidance of doubt, the Parent shall not be under any obligation to accept such Offered Terms and shall be able to seek commitments in relation to the Incremental Facility from additional banks, financial institutions and other institutional lenders or investors at its sole discretion.

 

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  (b)

If the Parent chooses to accept any of the Offered Terms (the “Selected Terms”) each other existing Lender that responded with Offered Terms shall have a right to participate in the relevant Incremental Facility on the Selected Terms in a proportion determined by the Parent (in its sole discretion).

 

  (c)

An Incremental Facility may be provided by existing Lenders or by other financial institutions or entities who become Lenders under and in accordance with this Agreement, provided that such financial institution or entity is an Eligible Institution.

 

9.2

Delivery of Incremental Facility Notice

 

  (a)

The Parent and each relevant Incremental Facility Lender may request the establishment of an Incremental Facility by the Parent delivering to the Agent a duly completed Incremental Facility Notice not later than five Business Days prior to the proposed Establishment Date specified in that Incremental Facility Notice.

 

  (b)

No Incremental Facility Notice may be delivered on or before the Closing Date or after the date falling 12 Months after the Closing Date.

 

9.3

Completion of an Incremental Facility Notice

 

  (a)

Each Incremental Facility Notice is irrevocable and will not be regarded as having been duly completed unless:

 

  (i)

it sets out the Incremental Facility Terms applicable to the Incremental Facility to which it relates;

 

  (ii)

each of:

 

  (A)

the Incremental Facility Terms applicable to that Incremental Facility;

 

  (B)

the Aggregate Yield applicable to that Incremental Facility; and

 

  (C)

any fees payable to the arranger of that Incremental Facility,

comply with Clause 9.4 (Restrictions on Incremental Facility Terms and fees); and

 

  (iii)

the Incremental Facility Lenders set out in that Incremental Facility Notice comply with Clause 9.1 (Incremental Facility Lenders).

 

  (b)

Only one Incremental Facility may be requested in an Incremental Facility Notice.

 

9.4

Restrictions on Incremental Facility Terms and fees

 

  (a)

Currency: Any Incremental Facility shall be denominated in the Base Currency or an Optional Currency.

 

  (b)

Size: The Aggregate Total Incremental Facility Commitments shall not, at any time, exceed USD50,000,000.

 

  (c)

Aggregate Yield:

 

  (i)

The Aggregate Yield (as certified by the Parent to the Agent) applicable to any Incremental Facility shall not exceed the Aggregate Yield applicable to Facility A and Facility B (or, if the Commitments under Facility A and Facility B have been reduced to zero, Facility A and Facility B immediately prior to that reduction) on a weighted average basis across those Facilities by more than 1.00 per cent. per annum.

 

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  (ii)

In this Agreement:

Aggregate Yield” means in relation to a Facility, the aggregate of:

 

  (A)

the Margin (taking into account any applicable interest rate floor) applicable to that Facility (if any); and

 

  (B)

any fee or commission (including, without limitation, any upfront fees payable pursuant to Clause 17.2 (Arrangement Fees) (such fees being treated as if they were a Primary Syndication OID), any utilisation fees payable pursuant to Clause 17.6 (Utilisation Fees in respect of Revolving Facility), but excluding any fees payable pursuant to Clause 17.1 (Commitment Fee) or fees payable pursuant to Clause 17.3 (Agency Fee) and Clause 17.4 (Security Agent Fee) or any other one-off exceptional fees) payable to the Lenders (in their capacity as such) under that Facility (amortised (on a straight line basis) over a period of three years);

 

  (C)

the aggregate of any Primary Syndication OID relating to that Facility (amortised (on a straight line basis) over a period of three years and assuming the relevant Incremental Facility is fully drawn).

Primary Syndication OID” means, in relation to a Facility and a person which enters into a Debt Purchase Transaction in relation to that Facility as part of primary syndication of that Facility:

 

  (A)

in the case of such a Debt Purchase Transaction relating to a funded amount of the Commitment and participations in Utilisations under that Facility, the difference between:

 

  (1)

the funded amount of that Commitment and those participations; and

 

  (2)

the amount payable by that person in consideration for that Debt Purchase Transaction; and

 

  (B)

in the case of such a Debt Purchase Transaction relating to an unfunded amount of the Commitment and participations in Utilisations under that Facility, the amount payable to that person in consideration for that Debt Purchase Transaction.

 

  (d)

Arrangement fee: The aggregate of any fees payable to any arrangers of any Incremental Facility shall not exceed 2.00 per cent. per Incremental Facility.

 

  (e)

Borrowers: Any Incremental Facility shall be available only to a Borrower of Facility A or Facility B.

 

  (f)

Purpose: Any Incremental Facility shall be used for the same purpose as applicable to Facility A and/or Facility B, as applicable, pursuant to Clause 3.1 (Purpose).

 

  (g)

Availability: The Availability Period for any Incremental Facility shall end on the date falling one Month prior to the Termination Date of that Incremental Facility.

 

  (h)

No procurement of breach: Satisfaction of any Incremental Facility Conditions Precedent shall not breach any term of any Finance Document.

For the purposes only of assessing compliance with this paragraph it shall be assumed that the amount of principal that will be outstanding under the Incremental Facility as at its Establishment Date is equal to the Total Incremental Facility Commitments relating to that Incremental Facility.

 

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  (i)

Repayment: The repayment terms for any Incremental Facility shall be set in accordance with Clause 10.1 (Repayment of Loans) and Clause 6.5 (Term of Letters of Credit), accordingly.

 

  (j)

Termination Date of the Incremental Facilities: The Termination Date applicable to any Incremental Facility shall not fall before the Termination Date applicable to Facility A and Facility B.

 

9.5

Conditions to Establishment

 

  (a)

The establishment of an Incremental Facility will only be effected in accordance with Clause 9.6 (Establishment of Incremental Facility) if:

 

  (i)

on the date of the Incremental Facility Notice and on the Establishment Date:

 

  (A)

no Event of Default is continuing or would result from the establishment of the proposed Incremental Facility; and

 

  (B)

the Repeating Representations to be made by each Obligor are true and correct;

 

  (ii)

each Incremental Facility Lender enters into the documentation required for it to accede as a party to the Intercreditor Agreement. For avoidance of doubt, without prejudice to the Parent’s foregoing right of approval, the Parent’s consent shall not be required for such accession;

 

  (iii)

each Incremental Facility Lender delivers an Incremental Facility Lender Certificate to the Agent and the Parent; and

 

  (iv)

the Agent has received in form and substance satisfactory to it:

 

  (A)

such documents (if any) as are reasonably necessary as a result of the establishment of that Incremental Facility to maintain the effectiveness of the Security, guarantees, indemnities and other assurance against loss provided to the Finance Parties pursuant to the Finance Documents; and

 

  (B)

any applicable Incremental Facility Supplemental Security.

 

  (b)

Paragraph (a)(iv)(A) above shall be subject to the Agreed Security Principles to the same extent that the relevant Obligor’s obligation to grant the relevant Security, guarantee, indemnity or other assurance against loss was subject to the Agreed Security Principles.

 

  (c)

The Agent shall notify the Parent and the Lenders promptly upon being satisfied under paragraph (a)(iv) above.

 

  (d)

Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (c) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.

 

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9.6

Establishment of Incremental Facility

 

  (a)

If the conditions set out in this Agreement have been met the establishment of an Incremental Facility is effected in accordance with paragraph (c) below when the Agent executes an otherwise duly completed Incremental Facility Notice. The Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Incremental Facility 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 Incremental Facility Notice.

 

  (b)

The Agent shall only be obliged to execute an Incremental Facility Notice delivered to it by the Parent once it is satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the establishment of the relevant Incremental Facility.

 

  (c)

On the Establishment Date:

 

  (i)

subject to the terms of this Agreement the Incremental Facility Lenders make available a multicurrency revolving loan facility and/or letters of credit facility in an aggregate amount equal to the Total Incremental Facility Commitments specified in the Incremental Facility Notice which will be available to the Borrowers specified in the Incremental Facility Notice;

 

  (ii)

each Incremental Facility Lender shall assume all the obligations of a Lender corresponding to the Incremental Facility Commitment (the “Assumed Incremental Facility Commitment”) specified opposite its name in the Incremental Facility Notice as if it had been an Original Lender in respect of that Incremental Facility Commitment;

 

  (iii)

each of the Obligors and each Incremental Facility Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and that Incremental Facility Lender would have assumed and/or acquired had that Incremental Facility Lender been an Original Lender with respect to the Assumed Incremental Facility Commitment;

 

  (iv)

each Incremental Facility Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Incremental Facility Lender and those Finance Parties would have assumed and/or acquired had the Incremental Facility Lender been an Original Lender in respect of the Assumed Incremental Facility Commitment; and

 

  (v)

each Incremental Facility Lender shall become a Party as a “Lender”.

 

9.7

Notification of Establishment

The Agent shall, as soon as reasonably practicable after the establishment of an Incremental Facility notify the Parent and the Lenders of that establishment and the Establishment Date of that Incremental Facility.

 

9.8

Incremental Facility Fees

The Obligors’ Agent shall pay, or cause to be paid, to the Agent (for its own account) a fee in the amount and at the time agreed in a Fee Letter.

 

9.9

Incremental Facility Costs and Expenses

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 the establishment of an Incremental Facility under this Clause 9.

 

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9.10

Prior Amendments Binding

Each Incremental Facility Lender, by executing an Incremental Facility 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 establishment of the Incremental Facility requested in that Incremental Facility Notice became effective in accordance with this Agreement and that it is bound by that decision to the same extent as it would have been had it been an Original Lender.

 

9.11

Limitation of Responsibility

Clause 29.5 (Limitation of Responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 9 in relation to any Incremental Facility Lender as if references in that Clause to:

 

  (a)

an “Existing Lender” were references to all the Lenders immediately prior to the Establishment Date;

 

  (b)

the “New Lender” were references to an “Incremental Facility Lender”; and

 

  (c)

a “re-transfer” and “re-assignment” were references respectively to a “transfer” and “assignment”.

 

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Section 4

Repayment, Prepayment and Cancellation

 

10.

Repayment

 

10.1

Repayment of Loans

 

  (a)

Subject to paragraph (c) below, each Borrower which has drawn a Loan shall repay that Loan on the last day of its Interest Period.

 

  (b)

Without prejudice to each Borrower’s obligation under paragraph (a) above, if:

 

  (i)

one or more Loans are to be made available to a Borrower:

 

  (A)

on the same day that a maturing Loan is due to be repaid by that Borrower;

 

  (B)

in the same currency as the maturing Loan (unless it arose as a result of the operation of Clause 8.2 (Unavailability of a Currency)); and

 

  (C)

in whole or in part for the purpose of refinancing the maturing Loan; and

 

  (ii)

the proportion borne by each Lender’s participation in the maturing Loan to the amount of that maturing Loan is the same as the proportion borne by that Lender’s participation in the new Loans to the aggregate amount of those new Loans,

the aggregate amount of the new Loans shall, unless the relevant Borrower or the Parent notifies the Agent to the contrary in the relevant Utilisation Request, 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 make a payment under Clause 35.1 (Payments to the Agent) in an amount in the relevant currency equal to that excess; and

 

  (2)

each 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 and that Lender will not be required to make a payment under Clause 35.1 (Payments to the Agent) in respect of its participation in the new Loans; and

 

  (B)

if the amount of the maturing Revolving Facility Loan is equal to or less than the aggregate amount of the new Loans:

 

  (1)

the relevant Borrower will not be required to make a payment under Clause 35.1 (Payments to the Agent); and

 

  (2)

each Lender will be required to make a payment under Clause 35.1 (Payments to the Agent) in respect of its participation in the new Loans only to the extent that its participation in the new Loans exceeds that Lender’s participation 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.

 

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  (c)

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 applicable to the relevant Facility and will be treated as separate Loans (the “Separate Loans”) denominated in the currency in which the relevant participations are outstanding.

 

  (d)

A Borrower to whom a Separate Loan is outstanding may prepay that Loan by giving not less than three Business Days’ prior notice to the Agent. The Agent will forward a copy of a prepayment notice received in accordance with this paragraph (d) to the Defaulting Lender concerned as soon as practicable on receipt.

 

  (e)

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 Agent (for the account of that Defaulting Lender) on the last day of each Interest Period of that Loan.

 

  (f)

The terms of this Agreement relating to Loans generally shall continue to apply to Separate Loans other than to the extent inconsistent with paragraphs (c) to (e) above, in which case those paragraphs shall prevail in respect of any Separate Loan.

 

11.

Illegality, Voluntary Prepayment and Cancellation

 

11.1

Illegality

If in any applicable jurisdiction, it becomes unlawful 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 or it becomes unlawful for any Affiliate of a Lender for that Lender to do so:

 

  (a)

that Lender shall promptly notify the Agent upon becoming aware of that event;

 

  (b)

upon the Agent notifying the Parent, each Available Commitment of that Lender will be immediately cancelled; and

 

  (c)

to the extent that the Lender’s participation has not been transferred pursuant to Clause 41.9 (Replacement of Lender), 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) and that Lender’s corresponding Commitment(s) shall be cancelled in the amount of the participations repaid.

 

11.2

Illegality in Relation to Fronting Bank

If it becomes unlawful for the Fronting Bank to issue or leave outstanding any Letter of Credit or it becomes unlawful for any Affiliate of the Fronting Bank for that Fronting Bank to do so then:

 

  (a)

that Fronting Bank shall promptly notify the Agent upon becoming aware of that event;

 

  (b)

upon the Agent notifying the Parent, the Fronting Bank shall not be obliged to issue any Letter of Credit;

 

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  (c)

the Parent shall procure that the relevant Borrower shall use its best endeavours to procure the release of each Letter of Credit issued by that Fronting Bank and outstanding at such time on or before the date specified by the Fronting Bank in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law); and

 

  (d)

unless any other Lender is or has become a Fronting Bank pursuant to the terms of this Agreement, Facility B or the relevant Incremental Facility (as applicable) 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 in respect of a Term Rate Loan, three Business Days’ (or such shorter period as the Majority Lenders may agree) and in respect of a Compounded Rate Loan, five RFR Banking Days’ (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of USD1,000,000) of an Available Facility. Any cancellation under this Clause 11.3 shall reduce the Commitments of the Lenders rateably under that Facility.

 

11.4

Voluntary Prepayment

A Borrower may, if it or the Parent gives the Agent not less than in respect of a Term Rate Loan, three Business Days’ (or such shorter period as the Majority Lenders may agree) and in respect of a Compounded Rate Loan, five RFR Banking Days’ (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of a Utilisation (but if in part, being an amount that reduces the Base Currency Amount of the Utilisation by a minimum amount of USD1,000,000).

 

11.5

Maximum Number of Voluntary Cancellation and Voluntary Prepayment

A Borrower and/or the Parent may only prepay the whole or any part of a Utilisation and/or cancel (in whole or in part) an Available Facility four (4) times per Financial Year in aggregate.

 

11.6

Right of Cancellation and Repayment in Relation to a Single Lender or Fronting Bank

 

  (a)

If:

 

  (i)

any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 18.2 (Tax Gross-Up); or

 

  (ii)

any Lender or Fronting Bank claims indemnification from the Parent or an Obligor under Clause 18.3 (Tax Indemnity) or Clause 19.1 (Increased Costs),

the Parent may, whilst the circumstance giving rise to the requirement for that increase or indemnification continues, give the Agent notice:

 

  (A)

(if such circumstances relate to a Lender) of cancellation of the Commitment(s) of that Lender and its intention to procure the repayment of that Lender’s participation in the Utilisations; or

 

  (B)

(if such circumstances relate to the Fronting Bank) of repayment of any outstanding Letter of Credit issued by it and cancellation of its appointment as a Fronting Bank under this Agreement in relation to any Letters of Credit to be issued in the future.

 

  (b)

On receipt of a notice referred to in paragraph (a) above in relation to a Lender, the Commitment(s) of that Lender shall immediately be reduced to zero.

 

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  (c)

On the last day of each Interest Period which ends after the Parent has given notice under paragraph (a) above in relation to a Lender (or, if earlier, the date specified by the Parent in that notice), each Borrower to which a Utilisation is outstanding shall repay that Lender’s participation in that Utilisation together with all interest and other amounts accrued under the Finance Documents.

 

11.7

Right of Cancellation in Relation to a Defaulting Lender

 

  (a)

If any Lender becomes a Defaulting Lender, the Parent may, at any time whilst the Lender continues to be a Defaulting Lender, give the Agent three Business Days’ notice of cancellation of each Available Commitment of that Lender.

 

  (b)

On the notice referred to in paragraph (a) above becoming effective, each Available Commitment of the Defaulting Lender shall immediately be reduced to zero.

 

  (c)

The Agent shall as soon as practicable after receipt of a notice referred to in paragraph (a) above, notify all the Lenders.

 

12.

Mandatory Prepayment and Cancellation

 

12.1

Change of Control

 

  (a)

For the purpose of this Clause 12.1:

Delisting Event” means the shares of the Parent (in the form of shares or depositary interests) ceasing to be listed on a regulated market or a multilateral trading facility, in each case, within the United States of America, the EEA or the United Kingdom as a result of a public-to-private transaction.

 

  (b)

Upon the occurrence of:

 

  (i)

any Delisting Event; or

 

  (ii)

a Change of Control; or

 

  (iii)

the sale of all or substantially all of the assets of the Group whether in a single transaction or a series of related transactions,

the Facilities will be cancelled and all outstanding Utilisations, together with accrued interest, and all other amounts accrued under the Finance Documents, shall become immediately due and payable.

 

12.2

Disposal and Insurance Proceeds

 

  (a)

For the purposes of this Clause 12.2, Clause 12.3 (Application of Mandatory Prepayments and Cancellations) and Clause 12.4 (Mandatory Prepayment Accounts):

Disposal” means a sale, lease, licence, transfer, loan or other disposal by a person of any asset, undertaking or business (whether by a voluntary or involuntary single transaction or series of transactions).

Disposal Proceeds” means the Cash consideration receivable by any member of the Group (including any amount receivable in repayment of intercompany debt) for any Disposal made by any member of the Group except for Excluded Disposal Proceeds and after deducting:

 

  (a)

any reasonable expenses which are incurred by any member of the Group with respect to that Disposal to persons who are not members of the Group; and

 

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  (b)

any Tax incurred and required to be paid by any member of the Group in connection with that Disposal (as reasonably determined by the Parent, on the basis of existing rates and taking account of any available credit, deduction or allowance).

Excluded Disposal Proceeds” means Disposal Proceeds:

 

  (a)

which are received in connection with any Disposal made under paragraphs (a), (b), (c), (d), (f), (g), (h), (i) and (j) of the definition of “Permitted Disposal”;

 

  (b)

which are received in connection with any Disposal made under paragraph (e) of the definition of “Permitted Disposal” but only to the extent that such proceeds are committed and applied within 12 Months of that Disposal in accordance with the terms of paragraph (e) of the definition of “Permitted Disposal”; or

 

  (c)

to be applied, or contractually committed to be applied, in the purchase of assets for use in the business of the Group within 12 Months of receipt (and if contractually committed to be so applied, are applied within 12 Months of receipt) of the relevant proceeds.

Excluded Insurance Proceeds” means any proceeds of an insurance claim which are equal to or less than USD10,000,000 or which the Parent notifies the Agent are, or are to be:

 

  (a)

applied to meet a third party claim;

 

  (b)

applied to cover operating losses or other costs in respect of which the relevant insurance claim was made;

 

  (c)

reinvested in the Group within 24 months of receipt; or

 

  (d)

applied in the replacement, reinstatement and/or repair of the assets or otherwise in amelioration of the loss in respect of which the relevant insurance claim was made,

in each case as soon as possible (but in any event within 5 days, or such longer period as the Majority Lenders may agree) after receipt.

Insurance Proceeds” means the proceeds of any insurance claim under any insurance maintained by any member of the Group except for Excluded Insurance Proceeds and after deducting any reasonable expenses in relation to that claim which are incurred by any member of the Group to persons who are not members of the Group.

 

  (b)

Subject to clause 16 (Adjustments of Mandatory Prepayments) of the Intercreditor Agreement, the Parent shall ensure that the relevant Borrower prepays Utilisations and cancels Available Commitments in amounts equal to the amount of Disposal Proceeds and Insurance Proceeds at the times and in the order of application contemplated by Clause 12.3 (Application of Mandatory Prepayments and Cancellations).

 

12.3

Application of Mandatory Prepayments and Cancellations

 

  (a)

A prepayment of Utilisations or cancellation of Available Commitments made under Clause 12.2 (Disposal and Insurance Proceeds) shall be applied in the following order:

 

  (i)

first, in cancellation of Available Commitments under Facility A, Facility B or all Incremental Facilities on a pro rata basis between such Facilities (and the Available Commitments of the Lenders under each Facility A, Facility B and all Incremental Facilities will be cancelled rateably); and

 

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  (ii)

secondly, in prepayment of Utilisations such that outstanding Loans and outstanding Letters of Credit shall be prepaid rateably between such Utilisations and, in each case, on a pro rata basis among the relevant Lenders thereunder, and cancellation, in each case, of the corresponding Facility A Commitments, Facility B Commitments and Incremental Facility Commitments,

provided that any prepayment and cancellation is subject to the terms of the Intercreditor Agreement.

 

  (b)

Unless the Parent makes an election under paragraph (c) below, the Borrowers shall prepay Loans promptly upon receipt of Disposal Proceeds.

 

  (c)

Subject to paragraph (d) below, the Parent may elect that any Disposal Proceeds under Clause 12.2 (Disposal and Insurance Proceeds) be applied in prepayment of a Loan on the last day of the Interest Period relating to that Loan. If the Parent makes that election then a proportion of the Loan equal to the amount of the relevant prepayment will be due and payable on the last day of its Interest Period.

 

  (d)

If the Parent has made an election under paragraph (c) above but a Default has occurred and is continuing, that election shall no longer apply and a proportion of the Loan in respect of which the election was made equal to the amount of the relevant prepayment shall be immediately due and payable (unless the Majority Lenders otherwise agree in writing).

 

12.4

Mandatory Prepayment Accounts

 

  (a)

The Parent shall ensure that an amount of Cash equal to the Disposal Proceeds in respect of which the Parent has made an election under paragraph (c) of Clause 12.3 (Application of Mandatory Prepayments and Cancellations) are paid into a Mandatory Prepayment Account as soon as reasonably practicable after receipt by a member of the Group.

 

  (b)

The Parent and each Borrower irrevocably authorise the Agent to apply amounts credited to the Mandatory Prepayment Account, to pay amounts due and payable under Clause 12.3 (Application of Mandatory Prepayments and Cancellations) and otherwise under the Finance Documents.

 

  (c)

Each Finance Party with which a Mandatory Prepayment Account is held acknowledges and agrees that (i) interest shall accrue at normal commercial rates on amounts credited to those accounts and that the account holder shall be entitled to receive such interest (which shall be paid in accordance with the mandate relating to such account) unless a Default is continuing and (ii) each such account is subject to the Transaction Security.

 

12.5

Excluded Proceeds

Where Excluded Disposal Proceeds include amounts which are intended to be used for a specific purpose within a specified period (as set out in the relevant definition of Excluded Disposal Proceeds), the Parent shall ensure that those amounts are used for that purpose and shall promptly deliver a certificate to the Agent at the time of such application and at the end of such period confirming the amount (if any) which has been so applied within the requisite time periods provided for in the relevant definition.

 

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13.

Restrictions

 

13.1

Notices of Cancellation or Prepayment

Any notice of cancellation, prepayment, authorisation or other election given by any Party under Clause 11 (Illegality, Voluntary Prepayment and Cancellation), paragraph (c) of Clause 12.3 (Application of Mandatory Prepayments and Cancellations) or Clause 12.4 (Mandatory Prepayment Accounts) shall (subject to the terms of those Clauses) be unconditional and irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

 

13.2

Interest and Other Amounts

Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.

 

13.3

Reborrowing of Revolving Facility

Unless a contrary indication appears in this Agreement, any part of the Revolving Facility which is prepaid or repaid may be reborrowed in accordance with the terms of this Agreement.

 

13.4

Prepayment in Accordance with Agreement

No Borrower shall repay or prepay all or any part of the Utilisations or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.

 

13.5

No Reinstatement of Commitments

Subject to Clause 2.3 (Increase), no amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

 

13.6

Agent’s Receipt of Notices

If the Agent receives a notice under Clause 11 (Illegality, Voluntary Prepayment and Cancellation) or an election under paragraph (c) of Clause 12.3 (Application of Mandatory Prepayments and Cancellations), it shall promptly forward a copy of that notice or election to either the Parent or the affected Lender, as appropriate.

 

13.7

Effect of Repayment and Prepayment on Commitments

If all or part of any Lender’s participation in a Utilisation under a Facility is repaid or prepaid and is not available for redrawing (other than by operation of Clause 4.2 (Further Conditions Precedent)), an amount of that Lender’s Commitment (equal to the Base Currency Amount of the amount of the participation which is repaid or prepaid) in respect of that Facility will be deemed to be cancelled on the date of repayment or prepayment.

 

13.8

Application of Prepayments

 

  (a)

Any prepayment of a Utilisation (other than a prepayment pursuant to Clause 11.1 (Illegality) or Clause 11.6 (Right of Cancellation and Repayment in Relation to a Single Lender or Fronting Bank)) shall be applied pro rata to each Lender’s participation in that Utilisation.

 

  (b)

Any prepayment of a Facility A Loan pursuant to Clause 11.3 (Voluntary Cancellation) or Clause 11.4 (Voluntary Prepayment) does not require a prepayment on a pro rata basis of a Facility B Letter of Credit or an Incremental Facility Utilisation; and any prepayment of a Facility B Letter of Credit pursuant to Clause 11.3 (Voluntary Cancellation) or Clause 11.4 (Voluntary Prepayment) does not require a prepayment on a pro rata basis of a Facility A Loan.

 

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Section 5

Costs of Utilisation

 

14A.

Rate Switch

 

14A.1

Switch to Compounded Reference Rate

Subject to Clause 14A.2 (Delayed switch for existing Term Rate Loans), on and from the Rate Switch Date for a Rate Switch Currency:

 

  (a)

use of the Compounded Reference Rate will replace the use of the Term Reference Rate for the calculation of interest for Loans in that Rate Switch Currency; and

 

  (b)

any Loan or Unpaid Sum in that Rate Switch Currency shall be a “Compounded Rate Loan” and Clause 14.2 (Calculation of interest – Compounded Rate Loans) shall apply to each such Loan or Unpaid Sum.

 

14A.2

Delayed switch for existing Term Rate Loans

If the Rate Switch Date for a Rate Switch Currency falls before the last day of an Interest Period for a Term Rate Loan in that currency:

 

  (a)

that Loan shall continue to be a Term Rate Loan for that Interest Period and Clause 14.1 (Calculation of interest – Term Rate Loans) shall continue to apply to that Loan for that Interest Period;

 

  (b)

any provision of this Agreement which is expressed to relate to a Compounded Rate Currency shall not apply in relation to that Loan for that Interest Period; and

 

  (c)

on and from the first day of the next Interest Period (if any) for that Loan:

 

  (i)

that Loan shall be a “Compounded Rate Loan”; and

 

  (ii)

Clause 14.2 (Calculation of interest – Compounded Rate Loans) shall apply to that Loan.

 

14A.3

Notifications by Agent

 

  (a)

Following the occurrence of a Rate Switch Trigger Event for a Rate Switch Currency, the Agent shall:

 

  (i)

promptly upon becoming aware of the occurrence of that Rate Switch Trigger Event, notify the Company and the Lenders of that occurrence; and

 

  (ii)

promptly upon becoming aware of the date of the Rate Switch Trigger Event Date applicable to that Rate Switch Trigger Event, notify the Company and the Lenders of that date.

 

  (b)

The Agent shall, promptly upon becoming aware of the occurrence of the Rate Switch Date for a Rate Switch Currency, notify the Company and the Lenders of that occurrence.

 

  (c)

The Parties agree that the FCA Cessation Announcement constitutes a Rate Switch Trigger Event in relation to US Dollars, that the Rate Switch Trigger Event Date applicable to such Rate Switch Trigger Event will be 1 July 2023 and that the Agent is not under any obligation under paragraph (a) above to notify any Party of such Rate Switch Trigger Event or Rate Switch Trigger Event Date resulting from the FCA Cessation Announcement.

 

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  (d)

For the purposes of the paragraph above, the “FCA Cessation Announcement” means the announcement on 5 March 2021 by the UK’s Financial Conduct Authority that all LIBOR settings will, as of certain specified future dates, either cease to be provided by any administrator or no longer be representative of the market and economic reality that they are intended to measure and that such representativeness will not be restored.

 

14A.4

Rate switch definition

In this Agreement:

 

  (a)

Backstop Rate Switch Date” means in relation to a Rate Switch Currency;

 

  (i)

the date (if any) specified as such in the applicable Reference Rate Terms; or

 

  (ii)

any other date agreed as such between the Agent, the Majority Lenders and the Parent in relation to that currency.

 

  (b)

Rate Switch Currency” means:

 

  (iii)

USD; or

 

  (iv)

any other Term Rate Currency which is specified as a “Rate Switch Currency” in the applicable Reference Rate Terms; and

in each case, for which there are Reference Rate Terms applicable to Compounded Rate Loans.

 

  (c)

Rate Switch Date” means:

 

  (i)

in relation to USD, the earlier of:

 

  (A)

the Backstop Rate Switch Date specified in the applicable Reference Rate Terms; and

 

  (B)

the Rate Switch Trigger Event Date; or

 

  (ii)

in relation to a Rate Switch Currency which becomes a Rate Switch Currency after the date of this Agreement and for which there is a date specified as the “Rate Switch Date” in the applicable Reference Rate Terms, that date.

 

  (d)

Rate Switch Trigger Event” means:

 

  (i)

in relation to any Rate Switch Currency and the Primary Term Rate applicable to Loans in that currency:

 

  (A)

the methodology, formula or other means of determining that Primary Term Rate has, in the opinion of the Majority Lenders and the Parent, materially changed;

 

  (B)

 

  (1)

    

 

  (I)

the administrator of that Primary Term Rate or its supervisor publicly announces that such administrator is insolvent; or

 

  (II)

information is published in any order, decree, notice, petition or filing, however described, of or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably confirms that the administrator of that Primary Term Rate is insolvent,

 

    

provided that, in each case, at that time, there is no successor administrator to continue to provide that Primary Term Rate;

 

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  (C)

the administrator of that Primary Term Rate publicly announces that it has ceased or will cease, to provide that Primary Term Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that Primary Term Rate for that Quoted Tenor;

 

  (D)

the supervisor of the administrator of that Primary Term Rate publicly announces that such Primary Term Rate has been or will be permanently or indefinitely discontinued for any Quoted Tenor; or

 

  (E)

the administrator of that Primary Term Rate or its supervisor announces that that Primary Term Rate may no longer be used; or

 

  (F)

in the opinion of the Majority Lenders and the Parent, that Primary Term Rate is otherwise no longer appropriate for the purposes of calculating interest under this Agreement,

in each case, other than with respect to the permanent or indefinite discontinuation of LIBOR for USD for the interest periods of one week and two months (which discontinuation shall not be deemed to constitute a Rate Switch Trigger Event in respect of any Loans in that currency or trigger a Rate Switch for such currency prior to the Backstop Rate Switch Date).

 

  (ii)

in relation to the Primary Term Rate for US Dollars, the supervisor of the administrator of that Primary Term Rate publicly announces or publishes information stating that that Primary Term Rate for any Quoted Tenor is no longer, or as of a specified future date will no longer be, representative of the underlying market and the economic reality that it is intended to measure and that such representativeness will not be restored (as determined by such supervisor)

Rate Switch Trigger Event Date” means, in relation to any currency:

 

  (a)

in the case of an occurrence of a Rate Switch Trigger Event for that Rate Switch Currency described in paragraph (d)(i)(B) of the definition of “Rate Switch Trigger Event”, the date on which the relevant Primary Term Rate ceases to be published or otherwise becomes unavailable; or

 

  (b)

in the case of an occurrence of a Rate Switch Trigger Event for that Rate Switch Currency described in paragraphs (d)(i)(C), (d)(i)(D), (d)(i)(E) or (d)(i)(F) of the definition of “Rate Switch Trigger Event”, the date on which the relevant Primary Term Rate for the relevant Quoted Tenor ceases to be published or otherwise becomes unavailable; or

 

  (c)

in the case of an occurrence of a Rate Switch Trigger Event for that Rate Switch Currency described in paragraph (d)(ii) of the definition of “Rate Switch Trigger Event”, the date on which the relevant Primary Term Rate for the relevant Quoted Tenor ceases to be representative of the underlying market and the economic reality that it is intended to measure (as determined by the supervisor of the administrator of such Primary Term Rate).

 

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14.

Interest

 

14.1

Calculation of interest – Term Rate Loans

The rate of interest on each Term Rate Loan for an Interest Period is the percentage rate per annum which is the aggregate of the applicable:

 

  (a)

Margin; and

 

  (b)

Term Reference Rate.

 

14.2

Calculation of interest – Compounded Rate Loans

 

  (a)

The rate of interest on each Compounded Rate Loan for any day during an Interest Period is the percentage rate per annum which is the aggregate of the applicable:

 

  (i)

Margin; and

 

  (ii)

Compounded Reference Rate for that day.

 

  (b)

If any day during an Interest Period for a Compounded Rate Loan is not an RFR Banking Day, the rate of interest on that Compounded Rate Loan for that day will be the rate applicable to the immediately preceding RFR Banking Day.

 

14.3

Payment of interest

The Borrower to which a Loan has been made shall pay accrued interest on that Loan on the last day of each Interest Period (and, if the Interest Period is longer than six Months, on the dates falling at six-monthly intervals after the first day of the Interest Period).

 

14.4

Default interest

 

  (a)

If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is 1.00 per cent. per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). Any interest accruing under this Clause 14.4 shall be immediately payable by the Obligor on demand by the Agent.

 

  (b)

If any overdue amount consists of all or part of a Term Rate Loan and which became due on a day which was not the last day of an Interest Period relating to that Loan:

 

  (i)

the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and

 

  (ii)

the rate of interest applying to the overdue amount during that first Interest Period shall be 1.00 per cent. per annum higher than the rate which would have applied if the overdue amount had not become due.

 

  (c)

Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.

 

14.5

Notifications

 

  (a)

The Agent shall promptly notify the relevant Lenders and the relevant Borrower of the determination of a rate of interest relating to a Term Rate Loan.

 

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  (b)

The Agent shall promptly upon a Compounded Rate Interest Payment being determinable notify:

 

  (i)

the relevant Borrower of that Compounded Rate Interest Payment;

 

  (ii)

each relevant Lender of the proportion of that Compounded Rate Interest Payment which relates to that Lender’s participation in the relevant Compounded Rate Loan; and

 

  (iii)

the relevant Lenders and the relevant Borrower of:

 

  (A)

each applicable rate of interest relating to the determination of that Compounded Rate Interest Payment; and

 

  (B)

to the extent it is then determinable, the Market Disruption Rate (if any) relating to the relevant Compounded Rate Loan.

This paragraph (b) shall not apply to any Compounded Rate Interest Payment determined pursuant to Clause 16.5 (Cost of funds).

 

  (c)

The Agent shall promptly notify the relevant Borrower of each Funding Rate relating to a Loan.

 

  (d)

The Agent shall promptly notify the relevant Lenders and the relevant Borrower of the determination of a rate of interest relating to a Compounded Rate Loan to which Clause 16.5 (Cost of funds) applies.

 

  (e)

This Clause 14.5 shall not require the Agent to make any notification to any Party on a day which is not a Business Day.

 

15.

Interest Periods

 

15.1

Selection of Interest Periods

 

  (a)

A Borrower (or the Parent on behalf of a Borrower) may select an Interest Period for a Loan in the Utilisation Request for that Loan or (if the Loan has already been borrowed) in a Selection Notice.

 

  (b)

Each Selection Notice for a Facility A Loan is irrevocable and must be delivered to the Agent by the Borrower (or the Parent) to which that Loan was made not later than the Specified Time.

 

  (b)

Subject to this Clause 15, a Borrower (or the Parent) may select an Interest Period of one, three or six Months or of any other period agreed between the Parent, the Agent and all the Lenders in relation to the relevant Loan.

 

  (c)

An Interest Period for a Loan shall not extend beyond the Termination Date applicable to its Facility.

 

  (d)

Each Interest Period for a Facility A Loan shall start on the Utilisation Date or (if already made) on the last day of its preceding Interest Period.

 

  (e)

A Loan has one Interest Period only.

 

  (f)

The length of an Interest Period of a Term Rate Loan shall not be affected by that Term Rate Loan becoming a “Compounded Rate Loan” for that Interest Period pursuant to Clause 16.1 (Unavailability of Screen Rate prior to Rate Switch Date).

 

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15.2

Non-Business Days

Any rules specified as “Business Day Conventions” in the applicable Reference Rate Terms for a Loan or Unpaid Sum shall apply to each Interest Period for that Loan or Unpaid Sum.

 

16.

Changes to the Calculation of Interest

 

16.1

Unavailability of Screen Rate prior to Rate Switch Date

 

  (a)

Interpolated Screen Rate: If no Screen Rate is available for LIBOR or, if applicable, EURIBOR for the Interest Period of a Loan, the applicable LIBOR or EURIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of that Loan.

 

  (b)

Reference Bank Rate: If no Screen Rate is available for LIBOR or, if applicable, EURIBOR for:

 

  (i)

the currency of a Loan; or

 

  (ii)

the Interest Period of a Loan and it is not possible to calculate the Interpolated Screen Rate,

the applicable LIBOR or EURIBOR shall be the Reference Bank 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.

 

  (c)

Cost of Funds: If paragraph (b) above applies but no Reference Bank Rate is available for the relevant currency or Interest Period there shall be no LIBOR or EURIBOR for that Loan and Clause 16.5 (Cost of Funds) shall apply to that Loan for that Interest Period.

 

16.2

Calculation of Reference Bank Rate

 

  (a)

Subject to paragraph (b) below, if LIBOR or EURIBOR is to be determined on the basis of a Reference Bank Rate but a Reference Bank does not supply a quotation by the Specified Time, the Reference Bank Rate shall be calculated on the basis of the quotations of the remaining Reference Banks.

 

  (b)

If at or about noon on the Quotation Day none or only one of the Reference Banks supplies a quotation, there shall be no Reference Bank Rate for the relevant Interest Period.

 

16.3

Interest calculation if no RFR or Central Bank Rate

If:

 

  (a)

there is no applicable RFR or Central Bank Rate for the purposes of calculating the Daily Non-Cumulative Compounded RFR Rate for an RFR Banking Day during an Interest Period for a Compounded Rate Loan; and

 

  (b)

Cost of funds will apply as a fallback” is specified in the Reference Rate Terms for that Loan,

Clause 16.5 (Cost of funds) shall apply to that Loan for that Interest Period.

 

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16.4

Market disruption

If:

 

  (a)

a Market Disruption Rate is specified in the Reference Rate Terms for a Loan; and

 

  (b)

before the Reporting Time for that Loan the Agency receives notification for a Lender or Lenders (whose participations in that Loan exceed 35 per cent. of that Loan) that its cost of funds relating to its participation in that Loan would be in excess of that Market Disruption Rate,

then Clause 16.5 (Cost of funds) shall apply to that Loan for the relevant Interest Period.

 

16.5

Cost of funds

 

  (a)

If this Clause 16.5 applies to a Loan for an Interest Period neither Clause 14.1 (Calculation of interest - Term Rate Loans) nor Clause 14.2 (Calculation of interest - Compounded Rate Loans) shall apply to that Loan for that Interest Period and the rate of interest on each Lender’s share of that Loan for that Interest Period shall be the percentage rate per annum which is the sum of:

 

  (i)

the applicable Margin; and

 

  (ii)

the weighted average of the rates notified to the Agent by each Lender as soon as practicable and in any event by the Reporting Time for that Loan, to be that which expresses as a percentage rate per annum its cost of funds relating to its participation in that Loan.

 

  (b)

If this Clause 16.5 applies and the Agent or the Company so requires, the Agent and the Company shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest.

 

  (c)

Any alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Company, be binding on all Parties.

 

  (d)

If this Clause 16.5 applies pursuant to Clause 16.4 (Market Disruption) and:

 

  (i)

a Lender’s Funding Rate is less than the relevant Market Disruption Rate; or

 

  (ii)

a Lender does not notify a rate to the Agent by the Reporting Time for that Loan,

that Lender’s cost of funds relating to its participation in that Loan for that Interest Period shall be deemed, for the purposes of paragraph (a) above, to be the Market Disruption Rate for that Loan.

 

  (e)

Subject to paragraph (d) above if this Clause 16.5 applies but any Lender does not notify a rate to the Agent by the Reporting Time for the relevant Loan the rate of interest shall be calculated on the basis of the rates notified by the remaining Lenders.

 

  (f)

If this Clause 16.5 applies the Agent shall, as soon as is practicable, notify the Company.

 

16.6

Break Costs

 

  (a)

Subject to paragraph (b) below, each Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs (if any) attributable to all or any part of a Loan or Unpaid Sum being paid by that Borrower on a day prior to the last day of an Interest Period for that Loan or Unpaid Sum.

 

  (b)

Paragraph (a) above shall apply in respect of a Compounded Rate Loan if an amount is specified as Break Costs in the applicable Reference Rate Terms.

 

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  (c)

Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in respect of which they become, or may become, payable.

 

17.

Fees

 

17.1

Commitment Fee

 

  (a)

The Parent shall pay, or cause to be paid, to the Agent (for the account of each Lender) a fee in the Base Currency computed at the rate of:

 

  (i)

30 per cent. per annum of the Margin applicable on that Lender’s Available Commitment under Facility A for the Availability Period applicable to Facility A;

 

  (ii)

30 per cent. per annum of the Margin applicable and payable pursuant to paragraph (b) of Clause 17.5 (Fees Payable in Respect of Letters of Credit); and

 

  (iii)

in relation to an Incremental Facility, the percentage rate per annum specified in the Incremental Facility Notice relating to that Incremental Facility on that Lender’s Available Commitment under that Incremental Facility for the Availability Period applicable to that Incremental Facility.

 

  (b)

The accrued commitment fee is payable on each Fee Payment Date which falls during the relevant Availability Period, on the last day of the relevant Availability Period and, if cancelled in full, on the cancelled amount of the relevant Lender’s Commitment at the time the cancellation is effective.

 

  (c)

No commitment fee is payable to the Agent (for the account of a Lender) on any Available Commitment of that Lender for any day on which that Lender is a Defaulting Lender.

 

17.2

Arrangement Fee

The Obligors’ Agent shall pay, or cause to be paid, to the Arranger an arrangement fee in the amount and at the times agreed in a Fee Letter.

 

17.3

Agency Fee

The Obligors’ Agent shall pay, or cause to be paid, to the Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter.

 

17.4

Security Agent Fee

The Obligors’ Agent shall pay, or cause to be paid, to the Security Agent (for its own account) a security agent fee in the amount and at the times agreed in a Fee Letter.

 

17.5

Fees Payable in respect of Facility B Letters of Credit

 

  (a)

Subject to paragraph (f) below, the Parent or each Borrower shall pay, or cause to be paid, to the Fronting Bank a fronting fee at the rate of 0.75 per cent. (or such other rate as may be agreed between the Fronting Bank and the Parent) per annum on the outstanding amount which is counter-indemnified by the other Lenders of each Facility B Letter of Credit requested by it (but excluding therefrom the amount of the share of the Fronting Bank in the outstanding amount of the relevant Facility B Letter of Credit if that Fronting Bank is also a Lender) for the period from the issue of that Facility B Letter of Credit until its Expiry Date.

 

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  (b)

The Parent or each Borrower shall pay, or cause to be paid, to the Agent (for the account of each Lender) a Letter of Credit fee at the rate of 3.00 per cent. per annum on the outstanding amount of each Facility B Letter of Credit requested by it (the “Letter of Credit Fee”) for the period from the issue of that Letter of Credit until its Expiry Date. Subject to paragraph (c) of Clause 7.6 (Regulation and Consequences of Cash Cover Provided by Borrower), this fee shall be distributed according to each Lender’s L/C Proportion of that Letter of Credit.

 

  (c)

The accrued fronting fee and Letter of Credit fee on a Facility B Letter of Credit shall be payable in arrears on each Fee Payment Date falling after the date of issue, and on the Expiry Date, for that Facility B Letter of Credit. The accrued Letter of Credit Fee is also payable on the cancelled amount of any Lender’s Commitment at the time the cancellation is effective if that Commitment is cancelled in full and the Facility B Letter of Credit is prepaid or repaid in full.

 

  (d)

The Parent or each Borrower shall pay, or cause to be paid, to the Fronting Bank (for its own account) an issuance fee of USD1,500 for each Facility B Letter of Credit issued during the Availability Period applicable to Facility B. The issuance fee shall be payable to the Fronting Bank on date of issue of the Facility B Letter of Credit.

 

  (e)

The Parent or each Borrower shall pay, or cause to be paid, to the Fronting Bank (for its own account) an amendment fee of USD1,500 for each amendment, extension or renewal made to a Facility B Letter of Credit. The amendment fee shall be payable to the Fronting Bank on date of amendment, extension or renewal (as applicable) of such Facility B Letter of Credit.

 

  (f)

If the Parent provides cash cover or a satisfactory counter-indemnity in accordance with the terms of this Agreement for any part of a Facility B Letter of Credit, then no fronting fee shall be payable in respect of that part of the Facility B Letter of Credit that is cash-collateralised or counter-indemnified.

 

17.6

Utilisation Fees in respect of Revolving Facility

 

  (a)

The Parent shall pay, or cause to be paid, to the Agent (for the account of each Lender) a fee computed in accordance with paragraph (b) below on that Lender’s Utilisations under Facility A from and including the date of this Agreement to the Termination Date.

 

  (b)

The applicable utilisation fee in respect of a Revolving Facility Utilisation under Facility A shall be the percentage per annum set out in the table below, determined as at the Utilisation Date of that Facility A Loan by reference to the aggregate amount of all outstanding Revolving Facility Utilisations under Facility A (expressed as a percentage of the Total Facility A Commitments) on that Utilisation Date (including the Facility A Loan but excluding any other Loans repaid on that Utilisation Date).

 

Aggregate
Amounts of Facility A Loans
outstanding as a per cent. of
Total Facility A Commitments on
Utilisation Date
   Utilisation fee (per cent. per annum)  

Greater than 66 2/3 per cent.

     0.50  

Equal or greater than 33 1/3 per cent. but equal or less than 66 2/3 per cent.

     0.25  

Less than 33 1/3 per cent.

     0.00  

 

  (c)

The accrued utilisation fee is payable on each Fee Payment Date which falls during the relevant Availability Period and on the applicable Termination Date.

 

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Section 6

Additional Payment Obligations

 

18.

Tax Gross Up and Indemnities

 

18.1

Definitions

 

  (a)

In this Agreement:

Borrower DTTP Filing” means an HM Revenue & Customs’ Form DTTP2 duly completed and filed by the relevant Borrower, which:

 

  (a)

where it relates to a Treaty Lender that is an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated opposite that Lender’s name in Part 2 of Schedule 1 (The Original Parties), and

 

  (i)

where the Borrower is an Original Borrower, is filed with HM Revenue & Customs within 30 days of the date of this Agreement; or

 

  (ii)

where the Borrower is an Additional Borrower, is filed with HM Revenue & Customs within 30 days of the date on which that Borrower becomes an Additional Borrower; or

 

  (b)

where it relates to a Treaty Lender that is not an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the documentation which it executes on becoming a Party as a Lender; and

 

  (i)

where the Borrower is a Borrower as at the date on which that Treaty Lender becomes a Party as a Lender, is filed with HM Revenue & Customs within 30 days of that date; or

 

  (ii)

where the Borrower is not a Borrower as at the date on which that Treaty Lender becomes a Party as a Lender, is filed with HM Revenue & Customs within 30 days of the date on which that Borrower becomes an Additional Borrower.

Luxembourg Guarantor” means a Guarantor incorporated and tax resident in Luxembourg.

Obligors Tax Jurisdiction” means the jurisdiction in which an Obligor is tax resident.

Protected Party” means a Finance Party which is or will be subject to any liability or required to make any payment for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.

Qualifying Lender” means:

 

  (a)

with respect to the United Kingdom, a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and is:

 

  (i)

a Lender:

 

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  (A)

which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Finance Document and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA; or

 

  (B)

in respect of an advance made under a Finance Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made and within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance; or

 

  (ii)

a Lender which is:

 

  (A)

a company resident in the United Kingdom for United Kingdom tax purposes;

 

  (B)

a partnership each member of which is:

 

  (1)

a company so resident in the United Kingdom; or

 

  (2)

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;

 

  (C)

a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company; or

 

  (iii)

a Treaty Lender;

 

  (b)

a Lender (other than a Treaty Lender) which is entitled under Dutch law to receive interest without any Tax Deduction;

 

  (c)

with respect to the United States, a Lender that is entitled under U.S. law to receive interest without any Tax Deduction;

 

  (d)

with respect to Luxembourg, a Lender which is beneficially entitled to interest payable to that Lender and:

 

  (i)

fulfils the conditions imposed by Luxembourg in order for a payment of interest not to be subject to (or as the case may be, to be exempt from) any Tax Deduction imposed by Luxembourg; or

 

  (ii)

it is a Treaty Lender.

Tax Confirmation” means a confirmation by a Lender that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:

 

  (a)

a company resident in the United Kingdom for United Kingdom tax purposes;

 

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  (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

 

  (c)

a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.

Tax Credit” means a credit against, relief or remission for, or repayment of, any Tax.

Tax Deduction” means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction.

Tax Payment” means either the increase in a payment made by an Obligor to a Finance Party under Clause 18.2 (Tax Gross-Up) or a payment under Clause 18.3 (Tax Indemnity).

Treaty Lender” means a Lender which:

 

  (a)

is treated as a resident of a Treaty State for the purposes of the relevant Treaty;

 

  (b)

does not carry on a business in the Obligor’s Tax Jurisdiction or the jurisdiction of source of interest (if different) through a permanent establishment with which that Lender’s participation in the Loan is effectively connected; and

 

  (c)

fulfils any other condition which must be fulfilled under the Treaty by residents of that Treaty State in order for such residents to obtain full exemption from Tax on interest imposed by the relevant Obligor’s Tax Jurisdiction, except that for this purpose it shall be assumed that any necessary procedural formalities are satisfied.

Treaty State” means a jurisdiction having a double taxation agreement (a “Treaty”) with the jurisdiction in which the relevant Obligor is treated as a resident for tax purposes (the “Obligors Tax Jurisdiction”) which makes provision for full exemption from tax imposed by Obligor’s Tax Jurisdiction on interest.

UK Borrower” means a Borrower incorporated and tax resident in the United Kingdom.

US Borrower” means a Borrower incorporated and tax resident in the United States.

UK Non-Bank Lender” means:

 

  (a)

an Original Lender listed in Part 3 of Schedule 1 (The Original Parties); and

 

  (b)

a Lender which is not an Original Lender and which gives a Tax Confirmation in the documentation which it executes on becoming a Party as a Lender.

Unless a contrary indication appears, in this Clause 18 a reference to “determines” or “determined” means a determination made in the absolute discretion of the person making the determination.

 

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18.2

Tax Gross-Up

 

  (a)

Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.

 

  (b)

The Parent shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender or the Fronting Bank shall notify the Agent on becoming so aware in respect of a payment payable to that Lender or the Fronting Bank. If the Agent receives such notification from a Lender or the Fronting Bank it shall notify the Parent and that Obligor.

 

  (c)

If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.

 

  (d)

A payment by a UK Borrower, or by a Guarantor in respect of a payment due from a UK Borrower, shall not be increased under paragraph (c) above by reason of a Tax Deduction on account of Tax imposed by the United Kingdom, if on the date on which the payment falls due:

 

  (i)

the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty or any published practice or published concession of any relevant taxing authority; or

 

  (ii)

the relevant Lender is a Qualifying Lender solely by virtue of paragraph (a)(ii) of the definition of “Qualifying Lender” and:

 

  (A)

an officer of H.M. Revenue & Customs has given (and not revoked) a direction (a “Direction”) under section 931 of the ITA which relates to the payment and that Lender has received from the Obligor making the payment or from the Parent a Certified Copy of that Direction; and

 

  (B)

the payment could have been made to the Lender without any Tax Deduction if that Direction had not been made; or

 

  (iii)

the relevant Lender is a Qualifying Lender solely by virtue of paragraph (a)(ii) of the definition of “Qualifying Lender” and:

 

  (A)

the relevant Lender has not given a Tax Confirmation to the Parent; and

 

  (B)

the payment could have been made to the Lender without any Tax Deduction if the Lender had given a Tax Confirmation to the Parent, on the basis that the Tax Confirmation would have enabled the Parent to have formed a reasonable belief that the payment was an “excepted payment” for the purpose of section 930 of the ITA; or

 

  (iv)

the relevant Lender is a Treaty Lender and the Obligor making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under paragraph (i) or (j) (as applicable) below.

 

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  (e)

A payment by a US Borrower, or by a Guarantor in respect of a payment due from a US Borrower, shall not be increased under paragraph (c) above by reason of a Tax Deduction on account of Tax imposed by United States, if on the date on which the payment falls due, the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Qualifying Lender, solely by virtue of paragraph (c) of the definition of “Qualifying Lender”, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty or any published practice or published concession of any relevant taxing authority.

 

  (f)

A payment by a Luxembourg Guarantor in respect of a payment due from a Borrower, shall not be increased under paragraph (c) above by reason of a Tax Deduction on account of Tax imposed by Luxembourg, if on the date on which the payment falls due:

 

  (i)

the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Qualifying Lender, solely by virtue of paragraph (d) of the definition of “Qualifying Lender”, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty or any published practice or published concession of any relevant taxing authority; or

 

  (ii)

the relevant Lender is a Treaty Lender and the Obligor making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under paragraph (i) below;

 

  (iii)

the relevant Lender is a Luxembourg resident individual and the Tax Deduction is due by virtue of the Luxembourg law dated 23 December 2005, as amended, introducing a final withholding tax on certain interest payments made to Luxembourg resident individuals (so called Relibi law).

 

  (g)

If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.

 

  (h)

Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to the payment a statement under section 975 of the ITA (where relevant) or such other evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

 

  (i)

 

  (i)

Subject to paragraph (ii) below, a Treaty Lender and each Obligor which makes a payment to which that Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction.

 

  (ii)

 

  (A)

A Treaty Lender which is an Original Lender and that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence opposite its name in Part 2 of Schedule 1 (The Original Parties); and

 

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  (B)

a Treaty Lender which is not an Original Lender and that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence in the documentation which it executes on becoming a Party as a Lender,

and, having done so, that Lender shall be under no obligation pursuant to paragraph (i) above.

 

  (j)

If a Lender has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with paragraph (i)(i) above and:

 

  (i)

a Borrower making a payment to that Lender has not made a Borrower DTTP Filing in respect of that Lender; or

 

  (ii)

a Borrower making a payment to that Lender has made a Borrower DTTP Filing in respect of that Lender but:

 

  (A)

that Borrower DTTP Filing has been rejected by HM Revenue & Customs; or

 

  (B)

HM Revenue & Customs has not given the Borrower authority to make payments to that Lender without a Tax Deduction within 60 days of the date of the Borrower DTTP Filing; or

 

  (C)

HM Revenue & Customs has given authority for an Obligor to make payment to that Lender without a Tax Deduction and that authority expires or is withdrawn by HM Revenue & Customs.

and in each case, the Borrower has notified that Lender in writing, that Lender and the Borrower shall co-operate in completing any additional procedural formalities necessary for that Borrower to obtain authorisation to make that payment without a Tax Deduction.

 

  (k)

If a Lender has not confirmed its scheme reference number and jurisdiction of tax residence in accordance with paragraph (i)(ii) above, no Obligor shall make a Borrower DTTP Filing or file any other form relating to the HMRC DT Treaty Passport scheme in respect of that Lender’s Commitment(s) or its participation in any Utilisation unless the Lender otherwise agrees.

 

  (l)

A Borrower shall, promptly on making a Borrower DTTP Filing, deliver a copy of that Borrower DTTP Filing to the Agent for delivery to the relevant Lender.

 

  (m)

A UK Non-Bank Lender which is an Original Lender gives a Tax Confirmation to the Parent by entering into this Agreement.

 

  (n)

A UK Non-Bank Lender shall promptly notify the Parent and the Agent if there is any change in the position from that set out in the Tax Confirmation.

 

18.3

Tax Indemnity

 

  (a)

The Parent shall (within three Business Days of demand by the Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.

 

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  (b)

Paragraph (a) above shall not apply:

 

  (i)

with respect to any Tax assessed on a Finance Party:

 

  (A)

under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or

 

  (B)

under the law of the jurisdiction in which that Finance Party’s Facility Office is located in respect of amounts received or receivable in that jurisdiction,

if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or

 

  (ii)

to the extent a loss, liability or cost:

 

  (A)

is compensated for by an increased payment under Clause 18.2 (Tax Gross-Up); or

 

  (B)

would have been compensated for by an increased payment under Clause 18.2 (Tax Gross-Up) but was not so compensated solely because one of the exclusions in paragraph (d) of Clause 18.2 (Tax Gross-Up) applied; or

 

  (C)

relates to a FATCA Deduction required to be made by a Party.

 

  (c)

A Protected Party making, or intending to make a claim under paragraph (a) above shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Parent.

 

  (d)

A Protected Party shall, on receiving a payment from an Obligor under this Clause 18.3, notify the Agent as soon as reasonably practicable.

 

18.4

Tax Credit

If an Obligor makes a Tax Payment and the relevant Finance Party determines that:

 

  (a)

a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and

 

  (b)

that Finance Party or any member of a tax consolidation group or unity to which the Finance Party belongs, has obtained and utilised that Tax Credit,

the Finance Party shall pay an amount to the Obligor which that Finance Party determines will leave it, or the tax consolidation group or unity to which it belongs (after that payment) in the same after-Tax position as it, or the tax consolidation group or unity to which it belongs, would have been in had the Tax Payment not been required to be made by the Obligor.

 

18.5

Lender Status Confirmation

Each Lender which is not an Original Lender shall indicate, in the documentation which it executes on becoming a Party as a Lender, and for the benefit of the Agent and without liability to any Obligor, which of the following categories it falls in:

 

  (a)

not a Qualifying Lender;

 

  (b)

a Qualifying Lender (other than a Treaty Lender); or

 

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  (c)

a Treaty Lender.

If such a Lender fails to indicate its status in accordance with this Clause 18.5 then that Lender shall be treated for the purposes of this Agreement (including by each Obligor) as if it is not a Qualifying Lender until such time as it notifies the Agent which category applies (and the Agent, upon receipt of such notification, shall inform the Parent). For the avoidance of doubt, the documentation which a Lender executes on becoming a Party as a Lender shall not be invalidated by any failure of a Lender to comply with this Clause 18.5.

 

18.6

Stamp Taxes

The Parent shall pay and, within three Business Days of demand, indemnify each Secured Party against any cost, loss or liability that Secured Party incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document other than:

 

  (a)

where it arises as a result of any voluntary assignment or transfer by a Lender; and

 

  (b)

with respect to Luxembourg other than any such cost, loss or liability incurred in Luxembourg as a result of a voluntary registration, or in accordance with a contractual agreement, or other action by the Finance Party with the Administration de lEnregistrement et des Domaines where such registration or action is not defined to enforce the rights of the Lender under the Finance Documents.

 

18.7

VAT

 

  (a)

All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party) or, where applicable, directly account for such VAT at the appropriate rate under the reverse charge procedure provided for by Article 196 of the Council Directive 2006/112/EC (as implemented by the relevant member state of the European Union or any other similar provision in any jurisdiction which is not a member state of the European Union).

 

  (b)

If VAT is or becomes chargeable on any supply made by any Finance Party (the “Supplier”) to any other Finance Party (the “Recipient”) under a Finance Document, and any Party other than the Recipient (the “Relevant Party”) is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):

 

  (i)

(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT against provision of a valid VAT invoice. The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and

 

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  (ii)

(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.

 

  (c)

Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.

 

  (d)

Any reference in this Clause 18.7 to any Party shall, at any time when such Party is treated as a member of a group or unity (or fiscal unity) for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to a person who is treated at that time as making the supply, or (as appropriate) receiving the supply, under the grouping rules provided for in Article 11 of the Council Directive 2006/112/EC (or as implemented by the relevant member state of the European Union or any other similar provision in any jurisdiction which is not a member state of the European Union, including in accordance with section 43 of the United Kingdom Value Added Tax Act 1994) so that a reference to a Party shall be construed as a reference to that Party or the relevant group or unity (or fiscal unity) of which that Party is a member for VAT purposes at the relevant time or the relevant representative member (or head) of that group or unity (or fiscal unity) at the relevant time (as the case may be).

 

  (e)

In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party’s VAT registration and such other information as is reasonably requested in connection with such Finance Party’s VAT reporting requirements in relation to such supply.

 

18.8

FATCA Information

 

  (a)

Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:

 

  (i)

confirm to that other Party whether it is:

 

  (A)

a FATCA Exempt Party; or

 

  (B)

not a FATCA Exempt Party;

 

  (ii)

supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party’s compliance with FATCA; and

 

  (iii)

supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party’s compliance with any other law, regulation, or exchange of information regime.

 

  (b)

If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.

 

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  (c)

Paragraph (a) above shall not oblige any Finance Party to do anything, and paragraph (a)(iii) above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:

 

  (i)

any law or regulation;

 

  (ii)

any fiduciary duty; or

 

  (iii)

any duty of confidentiality.

 

  (d)

If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (a)(ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.

 

  (e)

If a Borrower is a US Tax Obligor or the Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten Business Days of:

 

  (i)

where an Original Borrower is a US Tax Obligor and the relevant Lender is an Original Lender, the date of this Agreement;

 

  (ii)

where a Borrower is a US Tax Obligor on a date on which any other Lender becomes a Party as a Lender, that date;

 

  (iii)

the date a new US Tax Obligor accedes as a Borrower; or

 

  (iv)

where a Borrower is not a US Tax Obligor, the date of a request from the Agent,

supply to the Agent:

 

  (A)

a withholding certificate on Form W-8, Form W-9 or any other relevant form; or

 

  (B)

any withholding statement or other document, authorisation or waiver as the Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation.

 

  (f)

The Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) above to the relevant Borrower.

 

  (g)

If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Agent by a Lender pursuant to paragraph (e) above is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the Agent unless it is unlawful for the Lender to do so (in which case the Lender shall promptly notify the Agent). The Agent shall provide any such updated withholding certificate, withholding statement, document, authorisation or waiver to the relevant Borrower.

 

  (h)

The Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) or (g) above without further verification. The Agent shall not be liable for any action taken by it under or in connection with paragraph (e), (f) or (g) above.

 

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18.9

FATCA Deduction

 

  (a)

Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.

 

  (b)

Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Parent and the Agent and the Agent shall notify the other Finance Parties.

 

19.

Increased Costs

 

19.1

Increased Costs

 

  (a)

Subject to Clause 19.3 (Exceptions) the Parent shall, within three Business Days of a demand by the Agent, pay, or cause to be paid, for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation or (ii) compliance with any law or regulation made after the date of this Agreement or (iii) the implementation or application of or compliance with Basel III and/or CRD IV or any other law or regulation which implements or applies Basel III and/or CRD IV (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates).

 

  (i)

In this Agreement “Increased Costs” means:

 

  (A)

a reduction in the rate of return from a Facility or on a Finance Party’s (or its Affiliate’s) overall capital;

 

  (B)

an additional or increased cost; or

 

  (C)

a reduction of any amount due and payable under any Finance Document,

which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into its Commitment or funding or performing its obligations under any Finance Document or Letter of Credit.

 

19.2

Increased Cost Claims

 

  (a)

A Finance Party intending to make a claim pursuant to Clause 19.1 (Increased Costs) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Parent.

 

  (b)

Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs.

 

19.3

Exceptions

 

  (a)

Clause 19.1 (Increased Costs) does not apply to the extent any Increased Cost is:

 

  (i)

attributable to a Tax Deduction required by law to be made by or on behalf of an Obligor;

 

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  (ii)

attributable to a FATCA Deduction required to be made by a Party;

 

  (iii)

compensated for by Clause 18.3 (Tax Indemnity) (or would have been compensated for under Clause 18.3 (Tax Indemnity) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 18.3 (Tax Indemnity) applied);

 

  (iv)

attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation; or

 

  (v)

attributable to the application of or compliance with the “International Convergence of Capital Measurement and Capital Standards, a Revised Framework” published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement (but excluding any amendment arising out of Basel III) (“Basel II”), or any law or regulation which implements Basel II (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates).

 

  (b)

In this Clause 19.3:

Tax Deduction” has the same meaning given to the term in Clause 18.1 (Definitions).

Basel III” means:

 

  (i)

the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;

 

  (ii)

the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text” published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and

 

  (iii)

any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”.

CRD IV” means:

 

  (A)

Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms; and

 

  (B)

Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC.

 

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20.

Other Indemnities

 

20.1

Currency Indemnity

 

  (a)

If any sum due from an Obligor under the Finance Documents (a “Sum”), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the “First Currency”) in which that Sum is payable into another currency (the “Second Currency”) for the purpose of:

 

  (i)

making or filing a claim or proof against that Obligor; or

 

  (ii)

obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,

that Obligor shall as an independent obligation, within three Business Days of demand, indemnify each Secured Party to whom that Sum is due against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.

 

  (b)

Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.

 

20.2

Other Indemnities

The Parent shall (or shall procure that an Obligor will), within three Business Days of demand, indemnify the Arranger and each other Secured Party against any cost, loss or liability incurred by it as a result of:

 

  (a)

the occurrence of any Event of Default;

 

  (b)

a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 34 (Sharing Among the Finance Parties);

 

  (c)

funding, or making arrangements to fund, its participation in a Utilisation requested by the Parent or a Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone);

 

  (d)

issuing or making arrangements to issue a Letter of Credit requested by the Parent or a Borrower in a Utilisation Request but not issued by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or

 

  (e)

a Utilisation (or part of a Utilisation) not being prepaid in accordance with a notice of prepayment given by a Borrower or the Parent.

 

20.3

Indemnity to the Agent

The Parent shall promptly on demand indemnify the Agent against:

 

  (a)

any cost, loss or liability incurred by the Agent (acting reasonably) as a result of:

 

  (i)

investigating any event which it reasonably believes is a Default;

 

  (ii)

acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or

 

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  (iii)

instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement; and

 

  (b)

any cost, loss or liability (including without limitation, for negligence or any other category of liability whatsoever) incurred by the Agent (otherwise than by reason of the Agent’s gross negligence or wilful misconduct, as determined by a court of competent jurisdiction in a final non-appealable judgment) (or, in the case of any cost, loss or liability pursuant to Clause 35.11 (Disruption to Payment Systems Etc.) notwithstanding the Agent’s negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) in acting as Agent under the Finance Documents.

 

20.4

Indemnity to the Security Agent

 

  (a)

Each Obligor jointly and severally shall promptly on demand indemnify the Security Agent and every Receiver and Delegate against any cost, loss or liability (together with any applicable VAT) incurred by any of them as a result of:

 

  (i)

any failure by the Parent to comply with its obligations under Clause 22 (Costs and Expenses);

 

  (ii)

acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised;

 

  (iii)

the taking, holding, protection or enforcement of the Transaction Security;

 

  (iv)

the exercise of any of the rights, powers, discretions, authorities and remedies vested in the Security Agent and each Receiver and Delegate by the Finance Documents or by law;

 

  (v)

any default by any Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents; or

 

  (vi)

acting as Security Agent, Receiver or Delegate under the Finance Documents or which otherwise relates to any of the Charged Property (otherwise, in each case, than by reason of the relevant Security Agent’s, Receiver’s or Delegate’s gross negligence or wilful misconduct, as determined by a court of competent jurisdiction in a final non-appealable judgment).

 

  (b)

Each Obligor expressly acknowledges and agrees that the continuation of its indemnity obligations under this Clause 20.4 will not be prejudiced by any release or disposal under Clause 14 (Distressed Disposals and Appropriation) of the Intercreditor Agreement taking into account the operation of that clause.

 

  (c)

The S