EX-4.3 3 d106470dex43.htm EX-4.3 EX-4.3

Exhibit 4.3

CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS NOT MATERIAL AND IS THE TYPE OF INFORMATION THAT THE REGISTRANT CUSTOMARILY AND ACTUALLY TREATS AS PRIVATE AND CONFIDENTIAL. [***] INDICATES THAT INFORMATION HAS BEEN REDACTED.

 

LOGO

   CLIFFORD CHANCE LLP

EXECUTION VERSION

AMENDMENT AND RESTATEMENT AGREEMENT

DATED 16 FEBRUARY 2021

FOR

ANHEUSER-BUSCH INBEV SA/NV

AS COMPANY

WITH

BNP PARIBAS FORTIS SA/NV

ACTING AS AGENT

 

 

RELATING TO A USD9,000,000,000 FACILITIES

AGREEMENT

DATED 26 FEBRUARY 2010 (AS AMENDED ON

25 JULY 2011, EXTENDED ON 20 AUGUST 2013,

AMENDED AND RESTATED ON 28 AUGUST 2015

AND AMENDED ON 27 OCTOBER 2015)

 

 

 


CONTENTS

 

Clause    Page  
1.    Definitions and Interpretation      2  
2.    Representations      3  
3.    Amendment and Restatement      3  
4.    New Lenders and Commitment Increases      3  
5.    Continuity      6  
6.    Fees, Costs and Expenses      6  
7.    Consents and waiver      7  
8.    Miscellaneous      7  
9.    Governing Law      7  

Schedule 1 The Parties

     8  

Part I The Borrowers

     8  

Part II The Guarantors

     8  

Part III The Existing Lenders

     9  

Part IV The Lenders

     11  

Schedule 2 Conditions Precedent to the 2021 Effective Date

     i  

Schedule 3 Restated Agreement

     iii  

 

- i -


THIS AGREEMENT is dated 16 February 2021 and made between:

 

(1)

ANHEUSER-BUSCH INBEV SA/NV, a naamloze vennootschap/société anonyme, with its registered seat at Grand Place 1, 1000 Brussels, registered with the Crossroads Bank of Enterprises (Kruispuntbank voor Ondernemingen/Banque Carrefour des Entreprises) under number 0417.497.106 (RPR/RPM Brussels) (the “Company”);

 

(2)

THE COMPANIES listed in Part I of Schedule 1 (The Parties) as borrowers (the “Borrowers”);

 

(3)

THE COMPANIES listed in Part II of Schedule 1 (The Parties) as guarantors (the “Guarantors”);

 

(4)

THE FINANCIAL INSTITUTIONS listed in Part III of Schedule 1 (The Parties), as lenders (the “Existing Lenders”);

 

(5)

BANCO SANTANDER, S.A., NEW YORK BRANCH, BANCO BILBAO VIZCAYA ARGENTARIA, S.A. NEW YORK BRANCH, BANK OF AMERICA, N.A., LONDON BRANCH, CITIBANK, N.A., LONDON BRANCH, J.P. MORGAN AG, MIZUHO BANK EUROPE N.V., SOCIÉTÉ GÉNÉRALE S.A., BRUSSELS BRANCH, STANDARD CHARTERED BANK, NATIONAL WESTMINSTER BANK PLC and UNICREDIT S.P.A. as new lenders (the “New Lenders”);

 

(6)

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED, BANCO SANTANDER, S.A., NEW YORK BRANCH, BANK OF AMERICA EUROPE DESIGNATED ACTIVITY COMPANY, BARCLAYS BANK PLC, BANCO BILBAO VIZCAYA ARGENTARIA, S.A. NEW YORK BRANCH, BNP PARIBAS FORTIS SA/NV, CITIBANK, N.A., LONDON BRANCH, COMMERZBANK AKTIENGESELLSCHAFT, FILIALE LUXEMBURG, DEUTSCHE BANK LUXEMBOURG S.A., HSBC BANK USA, NATIONAL ASSOCIATION, ING BELGIUM SA/NV, INTESA SANPAOLO BANK LUXEMBOURG S.A., AMSTERDAM BRANCH, J.P. MORGAN AG, MIZUHO BANK EUROPE N.V., MORGAN STANLEY SENIOR FUNDING, INC., MUFG BANK, LTD., COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH, SOCIÉTÉ GÉNÉRALE S.A., BRUSSELS BRANCH, STANDARD CHARTERED BANK, SUMITOMO MITSUI BANKING CORPORATION, THE TORONTO-DOMINION BANK, THE BANK OF NEW YORK MELLON, NATIONAL WESTMINSTER BANK PLC, U.S. BANK NATIONAL ASSOCIATION, UNICREDIT S.P.A. and WELLS FARGO BANK, NATIONAL ASSOCIATION as mandated lead arrangers and bookrunners (the “Arrangers”);

 

(7)

BNP PARIBAS FORTIS SA/NV as agent of the other Finance Parties (the “Agent”); and

 

(8)

BNP PARIBAS FORTIS SA/NV as issuing bank (the “Issuing Bank”).

 

- 1 -


IT IS AGREED as follows:

 

1.

DEFINITIONS AND INTERPRETATION

 

1.1

Definitions

In this Agreement:

2021 Effective Date” means the date on which the Agent confirms to the Existing Lenders, the New Lenders, the Arrangers, the Issuing Bank and the Company that it has received each of the documents and other evidence listed in Schedule 2 (Conditions Precedent to the 2021 Effective Date) in form and substance satisfactory to the Agent (and the Agent shall provide such confirmation promptly upon being so satisfied).

Amended Facility Agreement” means the Original Facility Agreement, as amended and restated by this Agreement.

Guarantee Obligations” means the guarantee and indemnity obligations of a Guarantor contained in the Finance Documents.

Original Facility Agreement” means the USD9,000,000,000 facilities agreement dated 26 February 2010 (as amended on 25 July 2011, as extended on 20 August 2013, amended and restated on 28 August 2015 and amended on 27 October 2015) between, among others, the Company as company, the Company and Anheuser-Busch InBev Worldwide Inc. as original borrowers and original guarantors, Anheuser-Busch Companies, LLC as original guarantor, BNP Paribas Fortis SA/NV (formerly Fortis Bank SA/NV) as Agent and Issuing Bank and the financial institutions listed therein as original lenders.

Resigning Lenders” means each Existing Lender who is not listed as a lender in Part IV of Schedule 1 (The Parties).

 

1.2

Incorporation of defined terms

 

  (a)

Unless a contrary indication appears, a term defined in the Original Facility Agreement has the same meaning in this Agreement.

 

  (b)

The principles of construction set out in the Original Facility Agreement shall have effect as if set out in this Agreement.

 

1.3

Clauses

In this Agreement any reference to a “Clause” or a “Schedule” is, unless the context otherwise requires, a reference to a Clause in or a Schedule to this Agreement.

 

1.4

Third party rights

A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement.

 

- 2 -


1.5

Designation

In accordance with the terms of the Original Facility Agreement, each of the Company and the Agent designates this Agreement as a Finance Document.

 

2.

REPRESENTATIONS

Each of the representations and warranties in clause 29 (Representations) of the Original Facility Agreement, other than in clause 29.10 (Financial statements) of the Original Facility Agreement, are made by each Obligor (by reference to the facts and circumstances then existing) on:

 

  (a)

the date of this Agreement; and

 

  (b)

the 2021 Effective Date,

and references to “this Agreement” or to the “Finance Documents” in those representations and warranties shall be construed as references to or including (as the case may be) this Agreement and to the Original Facility Agreement and on the 2021 Effective Date, to the Amended Facility Agreement.

 

3.

AMENDMENT AND RESTATEMENT

With effect from the 2021 Effective Date, the Original Facility Agreement shall be amended and restated so that it shall be read and construed for all purposes as set out in Schedule 3 (Restated Agreement).

 

4.

NEW LENDERS AND COMMITMENT INCREASES

 

4.1

New Lender accession

 

  (a)

On the 2021 Effective Date:

 

  (i)

the Total Commitments will be increased to USD10,100,000,000.

 

  (ii)

the Commitments of each of the Existing Lenders will be increased or decreased (as applicable) to the amount set out in the relevant columns entitled “2021 Effective Date Revolving Facility Commitment”, “2021 Effective Date Dollar Swingline Commitment” and “2021 Effective Date Euro Swingline Commitment” opposite its name in Part IV of Schedule 1 (The Parties);

 

  (iii)

each Resigning Lender shall cease to be a Lender and an Arranger under the Amended Facility Agreement and each of the Obligors and the Resigning Lenders shall be released from further obligations towards one another under the Finance Documents and their respective rights against one another under the Finance Documents shall be cancelled;

 

  (iv)

each New Lender will become a Lender under the Amended Facility Agreement with Commitments as set out in the relevant columns entitled “2021 Effective Date Revolving Facility Commitment”, “2021 Effective Date Dollar Swingline Commitment” and “2021 Effective Date Euro Swingline Commitment” opposite its name in Part IV of Schedule 1 (The Parties);

 

- 3 -


  (v)

each of the Obligors, the Agent, the Arrangers, the Issuing Bank, the Existing Lenders (other than the Resigning Lenders) and the New Lenders shall assume obligations towards one another and/or acquire rights against one another as such parties would have assumed and/or acquired had:

 

  (A)

the relevant Existing Lenders been Original Lenders with the Commitments set out opposite their name in Part IV of Schedule 1 (The Parties); and

 

  (B)

the New Lenders been Original Lenders with the Commitments set out opposite their name in Part IV of Schedule 1 (The Parties).

 

  (b)

As a result of paragraph (a) above, the parties to the Amended Facility Agreement on the 2021 Effective Date will be the Obligors (in their respective capacities), the Agent, the Lenders as set out in Part IV of Schedule 1 (The Parties), the Issuing Bank and the Arrangers.

 

4.2

Amounts payable on or before the 2021 Effective Date

Any amounts payable to an Existing Lender by the Obligors pursuant to any Finance Document on or before the 2021 Effective Date (including, without limitation, all interest, fees and commission payable to that Existing Lender on the 2021 Effective Date) in respect of any period ending on or prior to the 2021 Effective Date shall be for the account of that Existing Lender and none of the New Lenders shall have any interest in, or any rights in respect of, any such amount.

 

4.3

Limitation of responsibility of Existing Lenders

 

  (a)

Each New Lender confirms to each Existing Lender and the other Finance Parties that it:

 

  (i)

has received a copy of the Original Facility Agreement together with such other information as it has required in connection with this transaction;

 

  (ii)

has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and the Amended Facility Agreement and has not relied exclusively on any information provided to it by any Existing Lender in connection with any Finance Document; and

 

  (iii)

will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.

 

- 4 -


  (b)

Unless expressly agreed to the contrary, no Existing Lender nor any other Finance Party makes any representation or warranty nor assumes any responsibility to the New Lenders for:

 

  (i)

the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents;

 

  (ii)

the financial condition of any Obligor;

 

  (iii)

the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or

 

  (iv)

the accuracy of any statements (whether written or oral) made in or in connection with the Finance Documents or any other document,

and any representations or warranties implied by law are excluded.

 

  (c)

Nothing in any Finance Document obliges any Existing Lender to support any losses directly or indirectly incurred by a New Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise.

 

4.4

Administrative Details

Each New Lender confirms that it has delivered to the Agent its Facility Office details and address, fax number and attention details for the purposes of clause 40 (Notices) of the Amended Facility Agreement.

 

4.5

New Lender Tax Status Confirmation

Each New Lender confirms in the relevant column opposite its name in Part IV of Schedule 1 (The Parties) whether it is:

 

  (a)

in respect of a Belgian Obligor:

 

  (i)

a Belgian Qualifying Lender (other than a Belgian Treaty Lender);

 

  (ii)

a Belgian Treaty Lender; or

 

  (iii)

not a Belgian Qualifying Lender,

 

  (b)

in respect of a Luxembourg Obligor:

 

  (i)

a Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender);

 

  (ii)

a Luxembourg Treaty Lender; or

 

  (iii)

not a Luxembourg Qualifying Lender,

 

  (c)

in respect a Borrower tax resident in U.S:

 

  (i)

a US Qualifying Lender (other than a US Treaty Lender);

 

- 5 -


  (ii)

a US Treaty Lender; or

 

  (iii)

not a US Qualifying Lender.

 

4.6

New Lender Status Confirmations

 

  (a)

Each New Lender confirms that it is not a Non-Acceptable L/C Lender.

 

  (b)

Each New Lender confirms that it is not incorporated, having its place of effective management, or acting through a Facility Office or office, as the case may be, located in a Non-Cooperative Jurisdiction.

 

5.

CONTINUITY

 

5.1

Continuing obligations

The provisions of the Original Facility Agreement and the other Finance Documents shall, save as amended by this Agreement, continue in full force and effect.

 

5.2

Confirmation of Guarantee Obligations

Each Guarantor confirms for the benefit of the Finance Parties its acceptance of the Amended Facility Agreement and that all Guarantee Obligations owed by it under the Original Facility Agreement shall (a) remain in full force and effect following the 2021 Effective Date notwithstanding the amendments referred to in Clause 3 (Amendment and Restatement) and (b) extend to any new obligations assumed by any Obligor under the Finance Documents as a result of this Agreement (including, but not limited to, under the Amended Facility Agreement).

 

6.

FEES, COSTS AND EXPENSES

 

6.1

Amendment fee

The Company shall within 5 Business Days of the 2021 Effective Date pay to the Agent (for the account of the Lenders under (and as defined in) the Amended Facility Agreement as at the 2021 Effective Date) an amendment fee (the “Amendment Fee”) in an amount equal to [***] per cent. of the amount of the Revolving Facility Commitment of each Lender under the Amended Facility Agreement on the 2021 Effective Date (as set out in Part IV of Schedule 1 (The Parties)).

 

6.2

Transaction expenses

The Company shall within ten Business Days of demand pay the Agent the amount of all costs and expenses (including but not limited to legal fees) reasonably incurred by it in connection with the negotiation, preparation, printing and execution of this Agreement and any other documents referred to in this Agreement.

 

- 6 -


7.

CONSENTS AND WAIVER

The Company, each other Obligor, the Agent, the Issuing Bank and each of the other Finance Parties each consent to the New Lenders becoming Lenders, the new Arrangers becoming Arrangers and the Resigning Lenders ceasing to be Lenders or Arrangers.

 

8.

MISCELLANEOUS

 

8.1

Incorporation of terms

The provisions of clause 40 (Notices), clause 42 (Partial invalidity), clause 43 (Remedies and waivers) and clause 49 (Enforcement) of the Original Facility Agreement shall be incorporated into this Agreement as if set out in full in this Agreement and as if references in those clauses to “this Agreement” or “the Finance Documents” are references to this Agreement.

 

8.2

Counterparts

This Agreement may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.

 

8.3

No waiver

Except to the extent expressly waived in this Agreement, no waiver is given by this Agreement and the Existing Lenders and the New Lenders expressly reserve all their rights and remedies in respect of any breach of, or other Default under, the Finance Documents.

 

9.

GOVERNING LAW

This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.

This Agreement has been entered into on the date stated at the beginning of this Agreement.

Documentary duty of EUR 0.15 per original paid by bank transfer from Clifford Chance on 29 September 2016. Droit d’écriture de 0,15 euro par original payé par transfert bancaire de Clifford Chance le 29 Septembre 2016. Recht op geschriften van 0,15 euro per origineel betaald per overschrijving door Clifford Chance op 29 September 2016.

 

- 7 -


SCHEDULE 1

THE PARTIES

PART I

THE BORROWERS

 

Name of Borrower    Registration number (or equivalent, if any) and Jurisdiction of Incorporation
The Company    0417.497.106, Belgium
Anheuser-Busch InBev Worldwide Inc.    90-0421412, Delaware, U.S.
Cobrew NV/SA    0428.975.372, Belgium

PART II

THE GUARANTORS

 

Name of Guarantor    Registration number (or equivalent, if any) and Jurisdiction of Incorporation
The Company    0417.497.106, Belgium
Anheuser-Busch InBev Worldwide Inc.    Tax identification number 90-0421412, Delaware, U.S.
Anheuser-Busch Companies, LLC    Tax identification number 90-0427472, Delaware, U.S.
Anheuser-Busch InBev Finance Inc.    File number 5253080, Delaware, U.S.
Brandbrew S.A.    RCS B75.696, Luxembourg
Brandbev S.à r.l    RCS B80.984, Luxembourg
Cobrew NV/SA    0428.975.372, Belgium

 

- 8 -


PART III

THE EXISTING LENDERS

 

Name of Existing Lender
Australia And New Zealand Banking Group Limited
Banco Santander, S.A.

Bank of America, N.A.

Bank of America Europe Designated Activity Company

Barclays Bank PLC
BNP Paribas Fortis SA/NV
Citibank, N.A.
Commerzbank Aktiengesellschaft, Filiale Luxemburg
Coöperatieve Rabobank U.A., New York Branch (formerly known as Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank Nederland”, New York Branch)
Deutsche Bank Luxembourg S.A.
HSBC Bank USA, National Association
ING Belgium SA/NV
Intesa Sanpaolo Bank Luxembourg S.A., Amsterdam Branch
JPMorgan Chase Bank, N.A.
J.P Morgan Securities plc
Mizuho Bank, Ltd., New York Branch
Mizuho Bank Nederland N.V.
Morgan Stanley Bank N.A.
MUFG Bank, Ltd. (formerly known as The Bank of Tokyo-Mitsubishi UFJ, Ltd.)
Société Générale Succursale en Belgique de la Société Générale France
Société Générale, London Branch

Sumitomo Mitsui Banking Corporation

 

The Toronto-Dominion Bank

 

- 9 -


Name of Existing Lender

The Bank of New York Mellon

 

The Royal Bank of Scotland plc

UniCredit Bank AG
U.S. Bank National Association
Wells Fargo Bank, National Association

 

- 10 -


PART IV

THE LENDERS

 

Name of Lender

  

2021 Effective

Date Revolving

Facility

Commitment

(USD)

  

2021 Effective

Date Dollar

Swingline

Commitment

(USD)

  

2021 Effective

Date Euro

Swingline

Commitment

(EUR)

  

Tax Status

Australia And New Zealand Banking Group Limited    [***]    [***]    [***]   

Belgian Qualifying Lender (other than a Belgian Treaty Lender)

 

Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender)

 

US Qualifying Lender (other than a US Treaty Lender)

Banco Santander, S.A., New York Branch    [***]    [***]    [***]   

Belgian Qualifying Lender (other than a Belgian Treaty Lender)

 

Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender)

 

US Qualifying Lender (other than a US Treaty Lender)

Bank of America Europe Designated Activity Company    [***]    [***]    [***]   

Belgian Treaty Lender

 

Luxembourg Treaty Lender

 

US Treaty Lender

 

- 11 -


Bank of America, N.A.    [***]    [***]    [***]   

Belgian Qualifying Lender (other than a Belgian Treaty Lender)

 

Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender)

 

US Qualifying Lender (other than a US Treaty Lender)

Barclays Bank PLC    [***]    [***]    [***]   

Belgian Qualifying Lender (other than a Belgian Treaty Lender)

 

Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender)

 

US Treaty Lender

Banco Bilbao Vizcaya Argentaria, S.A. New York Branch    [***]    [***]    [***]   

Belgian Qualifying Lender (other than a Belgian Treaty Lender)

 

Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender)

 

US Qualifying Lender (other than a US Treaty Lender)

BNP Paribas Fortis SA/NV    [***]    [***]    [***]   

Belgian Qualifying Lender (other than a Belgian Treaty Lender)

 

Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender)

 

US Qualifying Lender (other than a US Treaty Lender)

 

- 12 -


Citibank, N.A., London Branch    [***]    [***]    [***]   

Belgian Qualifying Lender (other than a Belgian Treaty Lender)

 

Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender)

 

US Qualifying Lender (other than a US Treaty Lender)

Commerzbank Aktiengesellschaft, Filiale Luxemburg    [***]    [***]    [***]   

Belgian Qualifying Lender (other than a Belgian Treaty Lender)

 

Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender)

 

US Qualifying Lender (other than a US Treaty Lender)

Deutsche Bank Luxembourg S.A.    [***]    [***]    [***]   

Belgian Qualifying Lender (other than a Belgian Treaty Lender)

 

Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender)

 

US Qualifying Lender (other than a US Treaty Lender)

HSBC Bank USA, National Association    [***]    [***]    [***]   

Belgian Qualifying Lender (other than a Belgian Treaty Lender)

 

Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender)

 

US Qualifying Lender (other than a US Treaty Lender)

 

- 13 -


ING Belgium SA/NV    [***]    [***]    [***]   

Belgian Qualifying Lender (other than a Belgian Treaty Lender)

 

Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender)

 

US Qualifying Lender (other than a US Treaty Lender)

Intesa Sanpaolo Bank Luxembourg S.A., Amsterdam Branch    [***]    [***]    [***]   

Belgian Qualifying Lender (other than a Belgian Treaty Lender)

 

Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender)

 

US Qualifying Lender (other than a US Treaty Lender)

J.P. Morgan AG    [***]    [***]    [***]   

Belgian Qualifying Lender (other than a Belgian Treaty Lender)

 

Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender)

 

US Qualifying Lender (other than a US Treaty Lender)

Mizuho Bank Europe N.V.    [***]    [***]    [***]   

Belgian Qualifying Lender (other than a Belgian Treaty Lender)

 

Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender)

 

US Qualifying Lender (other than a US Treaty Lender)

 

- 14 -


Mizuho Bank, Ltd., New York Branch    [***]    [***]    [***]   

Belgian Qualifying Lender (other than a Belgian Treaty Lender)

 

Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender)

 

US Qualifying Lender (other than a US Treaty Lender)

Morgan Stanley Bank N.A.    [***]    [***]    [***]   

Belgian Qualifying Lender (other than a Belgian Treaty Lender)

 

Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender)

 

US Qualifying Lender (other than a US Treaty Lender)

MUFG Bank, Ltd.    [***]    [***]    [***]   

Belgian Qualifying Lender (other than a Belgian Treaty Lender)

 

Luxembourg Treaty Lender

 

US Treaty Lender

Coöperatieve Rabobank U.A., New York Branch    [***]    [***]    [***]   

Belgian Treaty Lender

 

Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender)

 

US Qualifying Lender (other than a US Treaty Lender)

Société Générale S.A., Brussels Branch    [***]    [***]    [***]   

Belgian Qualifying Lender (other than a Belgian Treaty Lender)

 

Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender)

 

US Qualifying Lender (other than a US Treaty Lender)

 

- 15 -


Standard Chartered Bank    [***]    [***]    [***]   

Belgian Qualifying Lender (other than a Belgian Treaty Lender)

 

Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender)

 

US Qualifying Lender (other than a US Treaty Lender)

Sumitomo Mitsui Banking Corporation    [***]    [***]    [***]   

Belgian Qualifying Lender (other than a Belgian Treaty Lender)

 

Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender)

 

US Qualifying Lender (other than a US Treaty Lender)

The Toronto-Dominion Bank    [***]    [***]    [***]   

Belgian Qualifying Lender (other than a Belgian Treaty Lender)

 

Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender)

 

US Qualifying Lender (other than a US Treaty Lender)

The Bank of New York Mellon    [***]    [***]    [***]   

Belgian Qualifying Lender (other than a Belgian Treaty Lender)

 

Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender)

 

US Qualifying Lender (other than a US Treaty Lender)

 

- 16 -


National Westminster Bank plc    [***]    [***]    [***]   

Belgian Qualifying Lender (other than a Belgian Treaty Lender)

 

Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender)

 

US Qualifying Lender (other than a US Treaty Lender)

U.S. Bank National Association    [***]    [***]    [***]   

Belgian Qualifying Lender (other than a Belgian Treaty Lender)

 

Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender)

 

US Qualifying Lender (other than a US Treaty Lender)

UniCredit S.p.A.    [***]    [***]    [***]   

Belgian Qualifying Lender (other than a Belgian Treaty Lender)

 

Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender)

 

Not a US Qualifying Lender

Wells Fargo Bank, National Association    [***]    [***]    [***]   

Belgian Qualifying Lender (other than a Belgian Treaty Lender)

 

Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender)

 

US Qualifying Lender (other than a US Treaty Lender)

 

- 17 -


LOGO    CLIFFORD CHANCE LLP
   EXECUTION VERSION

SCHEDULE 2

CONDITIONS PRECEDENT TO THE 2021 EFFECTIVE DATE

Obligors

 

1.

A copy of the constitutional documents of each Obligor being, in respect of a Luxembourg Obligor, its up-to-date articles of association and an up-to-date excerpt from the Luxembourg Trade and Companies Register (“RCS”) pertaining to that Luxembourg Obligor.

 

2.

A copy of a resolution of the board of directors or, as applicable, the managers of each Obligor:

 

  (a)

approving the terms of, and the transactions contemplated by, this Agreement and resolving that it execute this Agreement;

 

  (b)

authorising a specified person or persons to execute this Agreement on its behalf; and

 

  (c)

authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, any Utilisation Request and Selection Notice) to be signed and/or despatched by it under or in connection with this Agreement.

 

3.

A specimen of the signature of each person authorised by the resolution referred to in paragraph 2 above.

 

4.

A certificate of the Company (signed by an authorised signatory) confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on any Obligor to be exceeded.

 

5.

In respect of each Luxembourg Obligor, an up-to-date negative certificate from the RCS stating that no judicial decision has been registered with the RCS by application of article 13, items 2 to 12 and article 14 of the Luxembourg law dated 19 December 2002 relating to the register of commerce and companies as well as the accounting and the annual accounts of companies, as amended (the “RCS Law”), according to which the relevant Luxembourg Obligor would be subject to one of the judicial proceedings referred to in these provisions of the RCS Law including in particular, bankruptcy (faillite), controlled management (gestion contrôlée), suspension of payments (sursis de paiement), arrangement with creditors (concordat préventif de la faillite) and judicial liquidation (liquidation judiciaire) proceedings.

 

6.

A certificate of an authorised signatory of each Obligor certifying that each copy document relating to it specified in paragraphs 1 to 5 above is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.

 

7.

A copy of a good standing certificate with respect to each U.S. Obligor, issued as of a recent date by the Secretary of State or other appropriate official of each U.S. Obligor’s jurisdiction of incorporation or organisation.


LOGO    CLIFFORD CHANCE LLP
   EXECUTION VERSION

Finance Documents

 

8.

This Agreement, duly executed by the parties to it.

Legal opinions

 

9.

A legal opinion of Allen & Overy LLP, legal advisers to the Agent in England.

 

10.

A legal opinion of Allen & Overy S.C.S., legal advisers to the Agent in Luxembourg.

 

11.

A legal opinion of Clifford Chance Brussels, legal advisers to the Company and the Belgian Obligors in Belgium.

 

12.

A legal opinion of Allen & Overy Brussels, legal advisers to the Agent in Belgium.

 

13.

A legal opinion of Sullivan & Cromwell LLP, legal advisers to the Company, Anheuser-Busch InBev Worldwide Inc., Anheuser-Busch Companies, LLC and Anheuser-Busch InBev Finance Inc. under the federal laws of the United States, the General Corporation Law of the State of Delaware and the laws of the State of New York.

Other documents and evidence

 

14.

A list of Security created by the Group prior to the 2021 Effective Date over its assets which secures Financial Indebtedness.

 

15.

A list of Financial Indebtedness incurred by the Group prior to the 2021 Effective Date.

 

16.

Evidence of payment of all fees, costs and expenses then due from the Company under the Facility Agreement.

 

17.

Evidence satisfactory to the Agent that each Lender has carried out and is satisfied with the results of all “know your customer” or other similar checks required in respect of the Obligors.


LOGO    CLIFFORD CHANCE LLP
   EXECUTION VERSION

SCHEDULE 3

RESTATED AGREEMENT


LOGO    CLIFFORD CHANCE LLP
   EXECUTION VERSION

26 FEBRUARY 2010, AS AMENDED ON 25 JULY 2011, AS EXTENDED ON

20 AUGUST 2013, AS AMENDED AND RESTATED BY AN AMENDMENT AND

RESTATEMENT AGREEMENT DATED 28 AUGUST 2015, AS AMENDED BY AN

AMENDMENT LETTER DATED 27 OCTOBER 2015 AND AMENDED AND

RESTATED BY AN AMENDMENT AND RESTATEMENT AGREEMENT DATED

16 February 2021

FOR

ANHEUSER-BUSCH INBEV SA/NV

AND

ANHEUSER-BUSCH INBEV WORLDWIDE INC.

ARRANGED BY

THE ARRANGERS

AND

BNP PARIBAS FORTIS SA/NV

ACTING AS AGENT

AND

BNP PARIBAS FORTIS SA/NV

AS ISSUING BANK

 

 

US$10,100,000,000

REVOLVING CREDIT AND SWINGLINE

FACILITIES AGREEMENT

 

 


CONTENTS

 

Clause         Page  
1.    Definitions and Interpretations      4  
2.    The Facilities      52  
3.    Purpose      55  
4.    Conditions of Utilisation      55  
5.    Utilisation – Loans      56  
6.    Utilisation – Letters of Credit      60  
7.    Letters of Credit      63  
8.    Dollar Swingline Facility      67  
9.    Utilisation - Dollar Swingline Loans      68  
10.    Dollar Swingline Loans      70  
11.    Euro Swingline Facility      72  
12.    Utilisation - Euro Swingline Loans      73  
13.    Euro Swingline Loans      75  
14.    Optional Currencies      79  
15.    Repayment      79  
16.    Illegality, Voluntary Prepayment and Cancellation      81  
17.    Mandatory Prepayment      84  
18.    Restrictions      84  
19A.    Rate Switch      85  
19.    Interest      86  
20.    Interest Periods      92  
21.    Changes to the Calculation of Interest      93  
22.    Fees      95  
23.    Tax Gross-up and Indemnities      97  
24.    Increased Costs      107  
25.    Other Indemnities      110  
26.    Mitigation by the Lenders      111  
27.    Costs and Expenses      112  
28.    Guarantee and Indemnity      112  
29.    Representations      117  
30.    Information Undertakings      122  
31.    General Undertakings      125  
32.    Events of Default      130  
33.    Changes to the Lenders      135  

 

- i -


34.    Changes to the Obligors      142  
35.    Role of the Agent, the Arrangers, the Issuing Bank and others      145  
36.    Conduct of business by the Finance Parties      154  
37.    Sharing among the Finance Parties      154  
38.    Payment Mechanics      156  
39.    Set-Off      160  
40.    Notices      160  
41.    Calculations and Certificates      163  
42.    Partial Invalidity      164  
43.    Remedies and Waivers      164  
44.    Amendments and Waivers      164  
45.    Confidential Information      172  
46.    Confidentiality of Funding Rates and Reference Bank Quotations      177  
47.    Counterparts      179  
48.    USA Patriot Act      179  
49.    Contractual Recognition of Bail-In      179  
50.    Governing Law      181  
51.    Enforcement      181  

Schedule 1 The 2021 Amendment and Restatement Date Parties

     183  

Part 1 The Borrowers

     183  

Part 2 The Guarantors

     183  

Part 3 A The 2021 Amendment and Restatement Date Lenders

     184  

Part 3 B The Dollar Swingline Lenders

     186  

Part 3 C The Euro Swingline Lenders

     188  

Part 4 The Arrangers

     190  

Schedule 2 Conditions Precedent

     192  

Part 1 Conditions Precedent to Initial Utilisation

     192  

Part 2 Conditions Precedent required to be delivered by an Additional Obligor

     195  

Schedule 3 Requests

     197  

Part 1 Utilisation Request - Loans

     197  

Part 2 Utilisation Request - Letters of Credit

     199  

Part 3 Utilisation request - Dollar Swingline Loans

     200  

Part 4 Utilisation Request - Euro Swingline Loans

     201  

Part 5 Form of Transfer Certificate

     202  

Schedule 4 Form of Accession Letter

     205  

Schedule 5 Form of Resignation Letter

     206  

Schedule 6 Timetables

     207  

 

- ii -


Part 1 Loans

     207  

Part 2 Swingline Loans

     209  

Part 3 Letters of Credit

     210  

Schedule 7 Form of Letter of Credit

     211  

Schedule 8 Guarantee Principles

     215  

Schedule 9 Material Brands

     216  

Schedule 10 Form of Increase Confirmation

     217  

Schedule 11 Form of Extension Request

     220  

Schedule 12 Form of Substitute Facility Office or Substitute Affiliate Lender Designation Notice

     221  

Schedule 13 Compounded Rate Terms

     223  

Part I Dollars

     223  

Part II Sterling

     227  

Schedule 14 Daily Non-Cumulative Compounded RFR Rate

     230  

Schedule 15 Form of Sustainability Compliance Certificate

     232  

 

- iii -


THIS AGREEMENT is dated 26 February 2010 (as amended on 25 July 2011, as extended on 20 August 2013, as amended and restated by an amendment and restatement agreement dated 28 August 2015, as amended by an amendment letter dated 27 October 2015 and as amended and restated pursuant to the 2021 Amendment and Restatement Agreement) and made

BETWEEN:

 

(1)

ANHEUSER-BUSCH INBEV SA/NV, a naamloze vennootschap/société anonyme, with its registered seat at Grand Place 1, 1000 Brussels, registered with the Crossroads Bank of Enterprises (Kruispuntbank voor Ondernemingen/Banque Carrefour des Entreprises) under number 0417 497-106 (RPR/RPM Brussels) (the “Company”);

 

(2)

ANHEUSER-BUSCH INBEV WORLDWIDE INC., a company incorporated under the laws of Delaware, having its registered office at 1209 Orange Street, Wilmington, Delaware 19801 with company registration no 90-0421412 (“ABIWW”);

 

(3)

THE FINANCIAL INSTITUTIONS listed in Part 4 of Schedule 1 as mandated lead arrangers and bookrunners (the “Arrangers”);

 

(4)

THE COMPANIES listed in the signature pages as original guarantors (the “Original Guarantors”);

 

(5)

THE FINANCIAL INSTITUTIONS listed in Part 3 of Schedule 1 as lenders (the “Original Lenders”);

 

(6)

BNP PARIBAS FORTIS SA/NV as agent of the other Finance Parties (the “Agent”); and

 

(7)

BNP PARIBAS FORTIS SA/NV as the issuing bank (the “Issuing Bank”).

IT IS AGREED as follows:

 

1.

DEFINITIONS AND INTERPRETATIONS

 

1.1

Definitions

In this Agreement:

STR” means, in relation to any day:

 

  (a)

the applicable Screen Rate for that day; or

 

  (b)

as otherwise determined pursuant to Clause 13.4 (Unavailability of Screen Rate – Euro Swingline Facility).

STR Spread” means 0.005 per cent.

2021 Amendment and Restatement Agreement” means an amendment and restatement agreement in relation to this Agreement dated 16 February 2021 between, among others, the Company, BNP Paribas Fortis SA/NV as agent and the Lenders.

 

- 4 -


2021 Amendment and Restatement Date” means the “2021 Effective Date” as defined in the 2021 Amendment and Restatement Agreement.

ABIFI” means Anheuser-Busch InBev Finance Inc.

Acceleration Event” means the Agent taking any of the actions set out in paragraphs (a) to (f) of Clause 32.14 (Acceleration).

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 A or higher by S&P or Fitch Ratings Ltd or A2 or higher by Moody’s or a comparable rating from an internationally recognised credit rating agency; or

 

  (b)

any other bank or financial institution approved by the Agent.

Accession Letter” means a document substantially in the form set out in Schedule 4 (Form of Accession Letter).

Accounting Principles” means:

 

  (a)

in the case of the audited consolidated financial statements of the Group, IFRS; or

 

  (b)

in any other case, the generally accepted accounting principles in the jurisdiction of incorporation of the relevant person, consistently applied.

Additional Borrower” means Cobrew NV/SA and any other company which becomes a Borrower in accordance with Clause 34 (Changes to the Obligors).

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

Additional Guarantor” means Brandbrew, Cobrew NV/SA, Brandbev and Anheuser-Busch InBev Finance Inc. and any other company which becomes a Guarantor in accordance with Clause 34 (Changes to the Obligors).

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

Affiliate” means:

 

  (a)

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 The Royal Bank of Scotland plc, the term “Affiliate” shall not include the U.K. 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 U.K. government or any member or instrumentality thereof (including Her Majesty’s Treasury and UK Financial Investments Limited) and which are not part of The Royal Bank of Scotland Group plc and its subsidiaries or subsidiary undertakings.

 

- 5 -


  (b)

Notwithstanding paragraph (a) above, 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.

AFM” means The Netherlands Authority for the Financial Markets (Stichting Autoriteit Financiële Markten).

Agent’s 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.

Ambev” means Ambev S.A. (legal successor of Companhia de Bebidas das Américas), a company incorporated under the laws of the Federative Republic of Brazil with registered address Rua Dr Renato Paes de Barros, 1017, 4° andar, CEP 04530-001 São Paulo, SP, Brazil, listed on the B3 – Brasil, Bolsa, Balcão (São Paulo Stock Exchange) and on the New York Stock Exchange.

Amended Termination Date” means the date falling 60 months after the 2021 Amendment and Restatement Date.

Amendment and Restatement Agreement” means the amendment and restatement agreement dated 28 August 2015 between, among others, the Company and BNP Paribas Fortis SA/NV as agent.

Amendment and Restatement Date” means the “Effective Date” as defined in the Amendment and Restatement Agreement.

Anheuser-Busch” means Anheuser-Busch Companies, LLC, a company incorporated under the law of the State of Delaware, United States with registered address One Busch Place, St. Louis, Missouri 63118 with issuer number 035229.

Anheuser-Busch Group” means Anheuser-Busch and its Subsidiaries from time to time.

 

- 6 -


Annual Report” means the audited consolidated financial statements of the Group for each of its financial years, which shall set out the performance of the KPIs against the relevant levels for the Baseline Year.

Anti-Corruption Law” means the United Kingdom Bribery Act 2010, the United States Foreign Corrupt Practices Act 1977 or other similar legislation in other jurisdictions which is directly applicable to the relevant member of the Group.

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

Availability Period” means the period from (and including) the date of this Agreement to and including the date falling one Month prior to the Final Termination Date.

Available Commitment” means, in relation to a Facility, a Lender’s Commitment under that Facility minus:

 

  (a)

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

 

  (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,

other than, in relation to any proposed Utilisation under the Revolving Facility only, that Lender’s participation in any Revolving Facility Utilisations that are due to be repaid or prepaid on or before the proposed Utilisation Date.

Available Dollar Swingline Commitment” of a Dollar Swingline Lender means (but without limiting Clause 9.4 (Relationship with the Revolving Facility)) that Lender’s Dollar Swingline Commitment minus:

 

  (a)

the Base Currency Amount of its participation in any outstanding Dollar Swingline Loans; and

 

  (b)

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

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

Available Dollar Swingline Facility” means the aggregate for the time being of each Dollar Swingline Lender’s Available Dollar Swingline Commitment.

 

- 7 -


Available Euro Swingline Commitment” of a Euro Swingline Lender means (but without limiting Clause 12.4 (Relationship with the Revolving Facility)) that Lender’s Euro Swingline Commitment minus:

 

  (a)

the Base Currency Amount of its participation in any outstanding Euro Swingline Loans; and

 

  (b)

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

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

Available Euro Swingline Facility” means the aggregate for the time being of each Euro Swingline Lender’s Available Euro Swingline 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.

Backstop Rate Switch Date” means:

 

  (a)

in relation to a Rate Switch Currency for which the Term Reference Rate for Revolving Facility Loans is LIBOR, 30 November 2021; and

 

  (b)

in relation to any other Rate Switch Currency, the date (if any) specified as such in the applicable Compounded Rate Terms,

or such earlier date as the Company may notify the Agent by at least five Business Days’ written notice, provided that such earlier date may not be earlier than 1 June 2021.

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 6.8 (Revaluation of Letters of Credit) at six-monthly intervals, as adjusted to reflect any repayment, prepayment, consolidation or division of a Utilisation.

Baseline Year” means the Company’s financial year that ended on 31 December 2020.

Belgian Companies and Associations Code” means the Belgian Company and Associations Code (Code des sociétés et des associations/Wetboek van vennootschappen en verenigingen) dated 23 March 2019, as amended from time to time.

 

- 8 -


Belgian Obligor” means, for the purposes of Clause 23 (Tax-Gross-up and Indemnities), an Obligor that is resident in Belgium for Belgian tax purposes or that has a permanent establishment in Belgium to which the advances under the Finance Documents are effectively connected and, for any other purpose in connection with the Finance Documents, an Obligor that has its statutory seat in Belgium.

Blocking Regulation” means the UK Blocking Regulation and/or the EU Blocking Regulation.

Block Rounding Period” has the meaning given to that term in Clause 41.3 (Day count convention and interest calculation).

Borrower” means an Original Borrower or an Additional Borrower unless it has ceased to be a Borrower in accordance with Clause 34 (Changes to the Obligors).

Brandbev” means Brandbev S.à r.l, a private limited liability company (société à responsabilité limitée) incorporated under the laws of Luxembourg, with its registered office at 15 Breedewues, L-1259 Senningerberg, Luxembourg and registered with the Luxembourg register of commerce and companies under number B 80.984.

Brandbrew” means Brandbrew S.A., a public limited liability company (société anonyme) incorporated under the laws of Luxembourg, with its registered office at 15 Breedewues, L-1259 Senningerberg, Luxembourg and registered with the Luxembourg register of commerce and companies under number B75.696.

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

 

  (a)

the interest (excluding the Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Term Rate Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Term Rate Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;

exceeds:

 

  (b)

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

Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in London, Brussels and New York and:

 

  (a)

(in relation to any date for payment or purchase of a currency other than euro) the principal financial centre of the country of that currency;

 

  (b)

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

 

- 9 -


  (c)

(in relation to:

 

  (i)

any date for payment or purchase of a Compounded Rate Loan;

 

  (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; or

 

  (iii)

the Lookback Period for a Compounded Rate Loan),

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

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

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

Change of Control” means any person or group of persons acting in concert (in each case other than Stichting InBev or any existing direct or indirect certificate holder or certificate holders of Stichting InBev or any person or group of persons acting in concert with any such persons) gaining Control of the Company.

For the purposes of this definition:

 

  (a)

acting in concert means, a group of persons who, pursuant to an agreement or understanding (whether formal or informal), actively co-operate, through the acquisition directly or indirectly of shares in the Company by any of them, either directly or indirectly, to obtain Control of the Company; and

 

  (b)

Stichting InBev means a company incorporated under the laws of The Netherlands under registered number 34144185 with registered address at Hofplein 20, 3032AC, Rotterdam, The Netherlands.

Code” means, at any date, the U.S. Internal Revenue Code of 1986 and the regulations promulgated and the judicial and administrative decisions rendered under it, all as the same may be in effect at such date.

Commitment” means a Revolving Facility Commitment, a Dollar Swingline Commitment or a Euro Swingline Commitment.

Compounded Rate Currency” means any Rate Switch Currency in respect of which the Rate Switch Date has occurred.

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 Revolving Facility Loan or, if applicable, Unpaid Sum in a Compounded Rate Currency which relates to the Revolving Facility which is, or becomes, a “Compounded Rate Loan” pursuant to Clause 19A (Rate Switch).

 

- 10 -


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

 

  (a)

is agreed in writing by the Company 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 Compounded Rate Terms; and

 

  (c)

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

Compounded Rate Terms” means in relation to:

 

  (a)

a currency;

 

  (b)

a Revolving Facility Loan or an Unpaid Sum in that currency;

 

  (c)

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

 

  (d)

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

the terms set out for that currency in Schedule 13 (Compounded Rate Terms) or in any Compounded Rate Supplement.

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, 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 a calculation methodology for that rate; and

 

  (c)

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

 

- 11 -


Confidential Information” means all information relating to the Company, 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 45 (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 Quotations.

Confidentiality Undertaking” means a confidentiality undertaking substantially in a recommended form of the LMA or in any other form agreed between the Company and the Agent and in each case capable of being relied upon by the Company.

Control” in relation to any entity means:

 

  (a)

the direct or indirect ownership of more than 50 per cent. of the share capital or similar rights of ownership of the entity; or

 

  (b)

the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:

 

  (i)

cast, or control the casting of, more than 50 per cent. of the maximum number of votes that might be cast at a general meeting; or

 

  (ii)

appoint or remove all, or the majority, of the directors or other equivalent officers; or

 

- 12 -


  (iii)

give directions to management with respect to the operating and financial policies of the entity with which the directors or other equivalent officers of the Parent are obliged to comply.

Core Business” means the business of beer brewing and soft drink manufacturing, drink bottling, trading and/or performing services and/or carrying out functions (including, without limitation, research and development, marketing, distribution and retail sales) in connection with the beer brewing and soft drink manufacturing businesses.

Credit Adjustment Spread” means, in respect of any Compounded Rate Loan, any rate which is either:

 

  (a)

specified as such in the applicable Compounded Rate Terms; or

 

  (b)

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 specified in the applicable Compounded Rate Terms.

Credit Rating” means the corporate long-term credit issue rating of the present and future senior, unsecured and unsubordinated debt obligations of the Company.

Credit Rating Period” means a period commencing on the date of a completion of an acquisition by the Company referred to in Clause 31.6 (Acquisitions) or, if earlier, the date of any announcement of such acquisition and ending sixty (60) days after the completion of such acquisition (which period shall be extended following consummation of an acquisition for so long as S&P or Moody’s has publicly announced within the period ending sixty (60) days after such acquisition that it is considering a possible negative change to the Credit Rating, provided that such Credit Rating Period shall not extend more than one hundred and twenty (120) days after the public announcement of such consideration.

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 14 (Daily Non-Cumulative Compounded RFR Rate) or in any relevant Compounding Methodology Supplement.

Daily Rate” means the rate specified as such in the applicable Compounded Rate Terms.

DCB” means The Dutch Central Bank (De Nederlandsche Bank N.V.).

Default” means an Event of Default or any event or circumstance specified in Clause 32 (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.

 

- 13 -


Defaulting Lender” means any Lender:

 

  (a)

which has failed to make its participation in a Loan available or has notified the Agent that it will not make its participation in a Loan available by the Utilisation Date of that Loan in accordance with Clause 5.4 (Lenders’ participation) or has failed (or its Affiliate has failed) to provide cash collateral (or has notified the Issuing Bank that it will not provide cash collateral) in accordance with Clause 7.4 (Cash collateral by Non-Acceptable L/C Lender);

 

  (b)

which has otherwise rescinded or repudiated a Finance Document; or

 

  (c)

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

unless, in the case of paragraph (a) above:

 

  (i)

its failure to pay is caused by:

 

  (A)

administrative or technical error; or

 

  (B)

a Disruption Event; and

payment is made within five 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.

Derivative Contract” means any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account).

DFSA” means The Dutch Financial Supervision Act (Wet op het financieel toezicht, “Wft”) and all rules promulgated thereunder and pursuant thereto as well as communications and published guidelines of the DCB and the AFM.

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,

 

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and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.

Dollar Swingline Commitment” means:

 

  (a)

in relation to a Dollar Swingline Lender on the 2021 Amendment and Restatement Date, the amount in dollars set opposite its name under the heading “Dollar Swingline Commitment” in Part 3B of Schedule 1 (The 2021 Amendment and Restatement Date Parties) and the amount of any other Dollar Swingline Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase); and

 

  (b)

in relation to any other Dollar Swingline Lender, the amount of any Dollar Swingline Commitment 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.

Dollar Swingline Facility” means the dollar swingline loan facility made available under this Agreement as described in Clause 10 (Dollar Swingline Loans).

Dollar Swingline Lender” means:

 

  (a)

a Lender listed in Part 3B of Schedule 1 (The 2021 Amendment and Restatement Date Parties) as a dollar swingline lender; or

 

  (b)

any other person which has become, after the 2021 Amendment and Restatement Date, a Party as a “Lender” in respect of a Dollar Swingline Commitment or a participation in a Dollar Swingline Loan in accordance with Clause 2.2 (Increase) or Clause 33 (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.

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

Dutch Obligor” means an Obligor incorporated in the Netherlands.

EBIT” means in respect of the Group on a consolidated basis and in relation to any period, profit from operations as reported for that period, measured by reference to the consolidated financial statements delivered by the Company pursuant to Clause 29.10 (Financial statements) in respect of such period or prior to the date on which any such financial statements are delivered to the Agent, the Original Financial Statements of the Company:

 

  (a)

plus (without double counting) dividends or other profit distributions (net of withholding tax) received in cash by any member of the Group during such period from any person in respect of which a member of the Group is a shareholder (or has an ownership interest) but which is not consolidated within the financial statements of the Group;

 

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  (b)

minus extraordinary or non-recurring items and/or non-operational income and gains; and

 

  (c)

plus extraordinary or non-recurring items and/or non-operational expenses and losses.

EBITDA” means in respect of the Group on a consolidated basis and in relation to any period, EBIT for that period:

 

  (a)

plus depreciation and impairment of tangible assets;

 

  (b)

plus amortisation and impairment of intangible assets;

 

  (c)

plus impairment of goodwill;

 

  (d)

minus (to the extent otherwise included) any gain over book value arising in favour of a member of the Group on the disposal of any non-financial asset (other than any disposal made in the ordinary course of business) during that period and any gain arising on any revaluation of any non-financial asset during that period; and

 

  (e)

plus (to the extent otherwise deducted) any loss against book value incurred by a member of the Group on the disposal of any non-financial asset (other than any disposal made in the ordinary course of business) during that period and any loss arising on any revaluation of any non-financial asset during that period.

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

Employee Plan” means an employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which a U.S. Obligor or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

Enhanced STR” means, in relation to any day, the percentage rate per annum which is the aggregate of the applicable:

 

  (a)

€STR; and

 

  (b)

the €STR Spread,

and if that rate is less than zero, Enhanced €STR shall be deemed to be zero.

Environmental Law” means any applicable law or regulation which relates to:

 

  (a)

the pollution or protection of the environment;

 

  (b)

harm to or the protection of human health;

 

  (c)

the physical conditions of the workplace; or

 

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  (d)

any emission or substance capable of causing harm to any living organism or the environment.

Environmental Permit” means any permit, other Authorisation or filing of any notification, report or assessment required under any Environmental Law for the operation of the business of any member of the Group.

ERISA” means, at any date, the United States Employee Retirement Income Security Act of 1974 and the regulations promulgated and rulings issued thereunder, all as the same may be in effect at such date.

ERISA Affiliate” means, in relation to a member of the Group, each person (as defined in Section 3(9) of ERISA) which together with that member of the Group would be deemed to be a “single employer” (a) within the meaning of Section 414(b), (c), (m) or (o) of the Code or (b) as a result of that member of the Group being or having been a general partner of such person.

ERISA Event” means:

 

  (a)

(i) the occurrence of a reportable event, within the meaning of Section 4043 of ERISA, with respect to any Plan unless the 30 day notice requirement with respect to such event has been waived or (ii) the requirements of Section 4043(b) of ERISA apply with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect to such Plan within the following 30 days;

 

  (b)

the application for a minimum funding waiver under Section 302 (c) of ERISA with respect to a Plan;

 

  (c)

the provision by the administrator of any Plan of a notice of intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA);

 

  (d)

the cessation of operations at a facility of any Obligor or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA;

 

  (e)

the incurrence by any Obligor or ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal by any Obligor or any ERISA Affiliate from a Multiple Employer Plan;

 

  (f)

the institution by the PBGC of proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or condition described in Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of a trustee to administer, such Plan;

 

  (g)

the failure to make by its due date a required contribution with respect to any Plan or the failure to make any required contribution to a Multiemployer Plan;

 

  (h)

the incurrence or expected incurrence by any Obligor or ERISA Affiliate of any liability under Title IV of ERISA with respect to any Plan or Multiemployer Plan;

 

- 17 -


  (i)

an action, suit, proceeding, hearing, audit or investigation with respect to the administration, operation or the investment of assets of any Plan (other than routine claims for benefits) is pending, expected or threatened;

 

  (j)

the incurrence of an Insufficiency by or with respect to any Plan.

EU Blocking Regulation” means Regulation (EU) No 2271/96 of the European Parliament and of the Council of 22 November 1996 protecting against the effects of the extraterritorial application of legislation adopted by a third country, and actions based on or resulting therefrom.

EURIBOR” means, in relation to any Term Rate 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 Term Rate Loan; or

 

  (b)

as otherwise determined pursuant to Clause 21.1 (Unavailability of Screen Rate),

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

euro” and “” means the single currency of the Participating Member States.

Euro Swingline Business Day” means any day (other than a Saturday or Sunday) on which banks are open for general business in London, Brussels and Luxembourg and which is a TARGET Day.

Euro Swingline Commitment” means:

 

  (a)

in relation to a Euro Swingline Lender on the 2021 Amendment and Restatement Date, the amount in euro set opposite its name under the heading “Euro Swingline Commitment” in Part 3C of Schedule 1 (The 2021 Amendment and Restatement Date Parties) and the amount of any other Euro Swingline Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase); and

 

  (b)

in relation to any other Euro Swingline Lender, the amount of any Euro Swingline Commitment 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.

Euro Swingline Facility” means the euro swingline loan facility made available under this Agreement as described in Clause 13 (Euro Swingline Loans).

Euro Swingline Lender” means:

 

  (a)

a Lender listed in Part 3C of Schedule 1 (The 2021 Amendment and Restatement Date Parties) as a euro swingline lender; or

 

  (b)

any other person which has become, after the 2021 Amendment and Restatement Date, a Party as a “Lender” in respect of a Euro Swingline Commitment or a participation in a Euro Swingline Loan in accordance with Clause 2.2 (Increase) or Clause 33 (Changes to the Lenders),

 

- 18 -


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

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

Event of Default” means any event or circumstance specified as such in Clause 32 (Events of Default).

Excluded Subsidiary” means Ambev and each of its Subsidiaries from time to time provided that if Ambev becomes a wholly owned Subsidiary of the Company, it and its Subsidiaries shall cease to be Excluded Subsidiaries.

Existing Credit Facilities” means the US$45,000,000,000 loan facilities made available to the Company and other members of the Group pursuant to a senior facilities agreement dated 12 July 2008.

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

Extension Request” means a notice substantially in the relevant form set out in Schedule 11 (Form of Extension Request).

Facility” means the Revolving Facility, the Dollar Swingline Facility or the Euro Swingline Facility.

Facility Office” means in respect of a Lender or the Issuing Bank, the office or offices notified by that Lender or Issuing Bank to the Agent in writing on or before the date it becomes a Lender or Issuing 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.

Fallback Interest Period” means 5 Business Days.

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 paragraph (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.

 

- 19 -


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 paragraph (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA.

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

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

Federal Funds Rate” means, in relation to any day, the rate per annum equal to:

 

  (a)

the rate on overnight federal funds transactions calculated by the Federal Reserve Bank of New York as the federal funds effective rate as published for that day (or, if that day is not a New York Business Day, for the immediately preceding New York Business Day) by the Federal Reserve Bank of New York; or

 

  (b)

if a rate is not so published for any day which is a New York Business Day, the average of the quotations for that day on overnight federal funds transactions received by the Agent from three depository institutions of recognised standing selected by the Agent,

and if, in either case, that rate is less than zero, the Federal Funds Rate shall be deemed to be zero

Fee Letter” means any letters between the Arrangers and the Company or the Agent and the Company setting out any of the fees referred to in Clause 2.2 (Increase) and Clause 22 (Fees).

Final Termination Date” means:

 

  (a)

 

  (i)

the Amended Termination Date;

 

  (ii)

if any Lender has agreed to the exercise of an Extension Option exercised before the second anniversary of the 2021 Amendment and Restatement Date, the First Extended Final Termination Date; or

 

  (iii)

if any Lender has agreed to the exercise of an Extension Option exercised on or after the second anniversary of the 2021 Amendment and Restatement Date, either the First Extended Final Termination Date or the Second Extended Final Termination Date as specified in the relevant Extension Request; and

 

- 20 -


  (b)

where that term is used in respect of a Lender:

 

  (i)

the Amended Termination Date;

 

  (ii)

if that Lender has agreed to the exercise of an Extension Option exercised before the second anniversary of the 2021 Amendment and Restatement Date only, the First Extended Final Termination Date;

 

  (iii)

if that Lender has agreed to both the first and the second exercise of the Extension Option, the Second Extended Final Termination Date; or

 

  (iv)

if that Lender has agreed only to the second exercise of the Extension Option, either the First Extended Final Termination Date or the Second Extended Final Termination Date as notified by the Lender to the Agent in accordance with paragraph (f) of Clause 5.6 (Extension Option).

Finance Document” means this Agreement, any Accession Letter, any Fee Letter, any Resignation Letter, any Utilisation Request, the Amendment and Restatement Agreement, the 2021 Amendment and Restatement Agreement, any Compounded Rate Supplement, any Compounding Methodology Supplement and any other document designated as a Finance Document by the Agent and the Company.

Finance Party” means the Agent, the Arrangers, a Lender or the Issuing Bank.

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

 

  (a)

moneys borrowed;

 

  (b)

any amount raised by acceptance under any acceptance credit facility;

 

  (c)

any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;

 

  (d)

any amount raised pursuant to any issue of shares which are expressed to be redeemable on or prior to the Final Termination Date;

 

  (e)

the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with the Accounting Principles, be treated as a balance sheet liability (other than any liability in respect of a lease or hire purchase contract which would, in accordance with the Accounting Principles in force prior to 1 January 2019, have been treated as an operating lease);

 

  (f)

the amount of any liability in respect of any advance or deferred purchase agreement if one of the primary reasons for entering into such agreement is to raise finance;

 

  (g)

receivables sold or discounted (other than on a non–recourse basis);

 

  (h)

any agreement or option to re–acquire an asset if one of the primary reasons for entering into such agreement or option is to raise finance;

 

- 21 -


  (i)

any amount raised under any other transaction (including any forward sale or purchase agreement) of a type not referred to in any other paragraph of this definition having the commercial effect of, and accounted for as, a borrowing;

 

  (j)

(without double counting) any counter-indemnity obligation in respect of any guarantee, indemnity, standby or documentary letter of credit or other similar instrument issued by a bank or financial institution (on behalf of any Obligor or Material Subsidiary), in each case for any of the items referred to in paragraphs (a) to (i) above; and

 

  (k)

(without double counting) the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (j) above,

and not including any Financial Indebtedness owed by one member of the Group to another member of the Group.

First Extended Final Termination Date” has the meaning given to such term in Clause 5.6 (Extension Option).

Funding Date” means the date of the first Utilisation under the Facilities (or any of them).

Funding Rate” means any individual rate notified by a Lender to the Agent pursuant to paragraph (a)(ii) of Clause 21.4 (Cost of funds) or paragraph (a)(ii) of Clause 13.6 (Cost of funds – Euro Swingline Facility).

GHG Emissions” means the total Scope 1 and 2 greenhouse gas emissions (as defined by the Greenhouse Gas Protocol) per hectolitre of production at the Group’s beverage facilities (excluding Vertical Operations) as determined on the basis of the methodology used for the determination of the relevant metric in the Initial Sustainability KPI Report.

GHG Emissions Target” means, in respect of any financial year of the Company commencing with the financial year ending on 31 December 2021, the target GHG Emissions, as set out in the following table:

 

Financial year

   Target (Kg CO2 e/hl)  

Financial year ending on 31 December 2021

     6.63  

Financial year ending on 31 December 2022

     6.53  

Financial year ending on 31 December 2023

     6.43  

Financial year ending on 31 December 2024

     6.33  

Financial year ending on 31 December 2025

     6.24  

Financial year ending on 31 December 2026

     6.14  

Financial year ending on 31 December 2027

     6.05  

 

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Greenhouse Gas Protocol” means the international Greenhouse Gas Protocol (http://www.ghgprotocol.org/) as at the 2021 Amendment and Restatement Date (as applied by the Company in its financial reporting for each financial year in line with industry standards and applicable internal policies).

Group” means the Company and each of its Subsidiaries from time to time.

Guarantee Principles” means the principles set out in Schedule 8 (Guarantee Principles).

Guarantor” means an Original Guarantor or an Additional Guarantor, unless it has ceased to be a Guarantor in accordance with Clause 34 (Changes to the Obligors).

Historic Screen Rate” means, in relation to any Term Rate Loan, the most recent applicable Screen Rate for the currency of that Term Rate Loan and for a period equal in length to the Interest Period of that Term Rate Loan and which is as of a day which is no more than 5 Business Days before the Quotation Day.

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

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

Impaired Agent” means the Agent at any time when:

 

  (a)

it has failed to make (or has notified a Party it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;

 

  (b)

(if the Agent is also a Lender) it is a Defaulting Lender under paragraph (a) or (b) of the definition of “Defaulting Lender”;

 

  (c)

an Insolvency Event has occurred and is continuing with respect to the Agent;

 

  (d)

the Agent otherwise rescinds or repudiates a Finance Document; or

unless, in the case of paragraph (a) above:

 

  (i)

its failure to pay is caused by:

 

  (A)

administrative or technical error; or

 

  (B)

a Disruption Event; and

payment is made within five Business Days of its due date; or

 

  (ii)

the 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 10 (Form of Increase Confirmation).

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

 

- 23 -


Initial Sustainability KPI Report” means the sustainability report contained in the Annual Report in respect of the financial year of the Company ending on 31 December 2020 with a statement of limited assurance in connection with each KPI from the Sustainability Report Assurer.

Insolvency Event” in relation to a Finance Party means that the Finance Party:

 

  (a)

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

 

  (b)

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

 

  (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, all other than by way of an Undisclosed Administration, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;

 

  (e)

has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and:

 

  (i)

results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or

 

  (ii)

is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;

 

  (f)

has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);

 

  (g)

seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets, all other than by way of an Undisclosed Administration;

 

  (h)

has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;

 

- 24 -


  (i)

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 (h) above; or

 

  (j)

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

Insufficiency” means, with respect to any Plan, the amount, determined on a plan termination basis, if any, of its unfunded benefit liabilities, as defined in, and in accordance with actuarial assumptions set forth in, Section 4001(a)(18) of ERISA (excluding any accrued but unpaid contributions).

Intellectual Property” means:

 

  (a)

any patents, trademarks, service marks, designs, business names, copyrights, design rights, moral rights, inventions, domain names, trade names, confidential information, knowhow and other intellectual property rights and interests, whether registered or unregistered, and any goodwill therein; and

 

  (b)

the benefit of all applications and rights to use such assets of each member of the Group.

Interest Period” means, in relation to a Loan, each period determined in accordance with Clause 20 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 19.9 (Default interest).

Interpolated Historic 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 most recent applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Term Rate Loan; and

 

  (b)

the most recent applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Term Rate Loan,

each for the currency of that Loan and each of which is as of a day which is no more than 5 Business Days before the Quotation Day.

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 Term Rate 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 Term Rate Loan,

each as of the Specified Time for the currency of that Term Rate Loan.

 

- 25 -


IRS” means the United States Internal Revenue Service or any successor thereto.

Issuing Bank” means each Lender identified above as an issuing bank and any other Lender which has notified the Agent that it has agreed to the Company’s request to be an Issuing Bank pursuant to the terms of this Agreement (and if more than one Lender has so agreed, such Lenders shall be referred to, whether acting individually or together, as the Issuing Bank) provided that, in respect of a Letter of Credit issued or to be issued pursuant to the terms of this Agreement, the Issuing Bank shall be the Issuing Bank which has issued or agreed to issue that Letter of Credit.

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

Judicial Deposit” means any cash deposit made in connection with any judicial or administrative proceeding against a member of the Group.

KPIs” means each of:

 

  (a)

Total Water Use (expressed in hl/hl);

 

  (b)

Recycled Content (expressed as a percentage);

 

  (c)

Renewable Electricity (expressed as a percentage); and

 

  (d)

GHG Emissions (expressed in Kg CO2 e/hl).

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 relevant Available Commitment under the Revolving Facility to the Available Facility under the Revolving 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 34 (Changes to the Obligors).

Legal Reservations” means:

 

  (a)

the principle that certain remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to bankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria, administration and other laws generally affecting the rights of creditors and secured creditors;

 

  (b)

the time barring of claims under applicable limitation laws (including the English Limitation Acts), defences of acquiescence, set-off or counterclaim and the possibility that an undertaking to assume liability for or indemnify a person against non-payment of UK stamp duty may be void;

 

  (c)

the principle that additional interest imposed pursuant to any relevant agreement may be held to be unenforceable on the grounds that it is a penalty and thus void;

 

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  (d)

the principle that an English court may not give effect to an indemnity for legal costs incurred by an unsuccessful litigant;

 

  (e)

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

 

  (f)

any other general principles which are set out as qualifications or reservations (however described) as to matters of law in any Legal Opinion.

Lender” means:

 

  (a)

any Lender listed in Part 3A of Schedule 1 (The 2021 Amendment and Restatement Date Parties); and

 

  (b)

any bank, financial institution, trust, fund or other entity which has become a Party as a “Lender” in accordance with Clause 2.2 (Increase) or Clause 33 (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)

a letter of credit, substantially in the form set out in Schedule 7 (Form of Letter of Credit) or in any other form requested by the Company and agreed by the Issuing Bank; or

 

  (b)

any guarantee, indemnity or other instrument in a form requested by a Borrower (or the Company on its behalf) and agreed by the Issuing Bank and the Agent.

LIBOR” means, in relation to any Term Rate Loan:

 

  (a)

the applicable Screen Rate as of the Specified Time for the currency of that Loan and for a period equal in length to the Interest Period of that Loan; or,

 

  (b)

as otherwise determined pursuant to Clause 21.1 (Unavailability of Screen Rate),

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

LMA” means the Loan Market Association.

Loan” means a Revolving Facility Loan, a Dollar Swingline Loan or a Euro Swingline Loan.

Lookback Period” means the number of days specified as such in the applicable Compounded Rate Terms.

Luxembourg” means the Grand Duchy of Luxembourg.

Luxembourg Commercial Code” means the Code de Commerce of Luxembourg.

Luxembourg Guarantor” means a Guarantor incorporated in Luxembourg.

 

- 27 -


Luxembourg Obligor” means an Obligor incorporated in Luxembourg.

Majority Lenders” means 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).

Margin” means the percentage rate per cent. per annum determined in accordance with Clauses 19.3 (Margin) and 19.4 (Calculation of Margin – Sustainability Discount and Sustainability Premium).

Material Adverse Effect” means any event or condition that (individually or in aggregate) has a material adverse effect on:

 

  (a)

the ability of the Obligors (taken as a whole) to perform any of their payment obligations under the Finance Documents; or

 

  (b)

the business, assets, financial condition or operations of the Group taken as a whole.

Material Subsidiary” means, at any time, any member of the Group other than Sun-InBev OJSC (company number 1045003951156) which:

 

  (a)

has earnings before interest, tax, depreciation and amortisation calculated on an unconsolidated basis in the same manner as EBITDA representing ten per cent. or more of the consolidated EBITDA of the Group; or

 

  (b)

is the owner of the registered trademark of a brand listed in Schedule 9 (Material Brands).

Compliance with the condition set out in paragraph (a) above shall be determined by reference to the latest financial statements of that Subsidiary (audited, if available) and the latest audited consolidated financial statements of the Group.

Modelo” means Cervecería Modelo de México, S. de R.L. de C.V., a company incorporated under the laws of Mexico with registered address Cerrada de Palomas 22, piso 5, colonia Reforma Social, 11650, Ciudad de Mexico, Mexico.

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;

 

  (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

 

- 28 -


  (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 Compounded Rate Terms, those rules shall apply.

The above rules will only apply to the last Month of any period, and Monthly shall be construed accordingly.

Moody’s” means Moody’s Investor Services, Inc., or any successor thereto.

Multiemployer Plan” means a multiemployer plan, as defined in Section (3)(37) of ERISA, subject to Title IV of ERISA, contributed to for any employees of a U.S. Obligor or any ERISA Affiliate.

Multiple Employer Plan” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, subject to Title IV of ERISA, that (a) is maintained for employees of any Obligor or any ERISA Affiliate and at least one person other than the Obligors and the ERISA Affiliates or (b) was so maintained and in respect of which any Obligor or any ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated.

New York Business Day” means a day (other than a Saturday or a Sunday) on which banks are open for general business in New York.

Newco Merger” means the Belgian law reverse merger of the Company into a company incorporated in Belgium as a naamloze vennootschap/société anonyme in connection with the (indirect) acquisition by the Company of SABMiller plc.

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

 

  (a)

has a rating for its long-term unsecured and non credit enhanced debt obligations below A- by S&P or Fitch Ratings Ltd or below A3 by Moody’s or a comparable rating from an internationally recognised credit rating agency (other than (i) a Lender as at the 2021 Amendment and Restatement Date (provided that such Lender’s rating for its long-term unsecured and non credit enhanced debt obligations at the relevant time is not lower than it was at the 2021 Amendment and Restatement Date) or (ii) a Lender which each Issuing Bank has agreed is acceptable to it notwithstanding that fact); or

 

  (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 35.11 (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 (i)-(ii) of the definition of Defaulting Lender.

 

- 29 -


Non-Cooperative Jurisdiction” means a tax haven country, a low-tax jurisdiction or a non-cooperative jurisdiction within the meaning of article 307, §1/2 of the Belgian Income Tax Code 1992 or any successor provision.

Non-Material Obligor” means an Obligor which is not a Material Subsidiary and is not a Borrower.

Non-Obligor” means a member of the Group which is not an Obligor.

Obligor” means a Borrower or a Guarantor.

Obligors’ Agent” means the Company, appointed to act on behalf of each Obligor in relation to the Finance Documents pursuant to Clause 2.4 (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).

Original Borrower” means the Company and ABIWW.

Original Financial Statements” means the Company’s consolidated audited financial statements for its financial year ended 31 December 2009.

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

Other Guaranteed Facilities” means:

 

  (a)

any debt securities issued by Anheuser-Busch under any of the following indentures:

 

  (i)

the Indenture, dated 1 August 1995 among Anheuser-Busch (formerly known as Anheuser-Busch Companies, Inc.) and The Bank of New York Mellon Trust Company, N.A., (as successor to Chemical Bank) as trustee;

 

  (ii)

the Indenture, dated 1 July 2001 among Anheuser-Busch (formerly known as Anheuser-Busch Companies, Inc.) and The Bank of New York Mellon Trust Company, N.A. (as successor to The Chase Manhattan Bank), as trustee; and

 

  (iii)

the Indenture, dated 1 October 2007 among Anheuser-Busch (formerly known as Anheuser-Busch Companies, Inc.) and The Bank of New York Mellon Trust Company, N.A. (formerly known as The Bank of New York Trust Company, N.A.), as trustee;

 

  (b)

any debt securities issued or guaranteed by Brandbrew or Brandbev under the €40,000,000,000 (originally €15,000,000,000) Euro Medium Term Note Programme originally entered into on 16 January 2009;

 

  (c)

any debt securities guaranteed by Brandbrew or Brandbev under the A$3,000,000,000 Medium Term Note Program issued by Anheuser-Busch InBev Worldwide Inc. originally entered into on 14 November 2016, as the same may be amended from time to time;

 

- 30 -


  (d)

any debt securities guaranteed by Brandbrew or Brandbev under the Indenture dated 12 January 2009, among ABIWW, the Company, the subsidiary guarantors listed therein and the Bank of New York Mellon, New York Branch as trustee;

 

  (e)

any bonds guaranteed by Brandbrew or Brandbev under the Indenture, dated 16 October 2009 among ABIWW, the Company, the subsidiary guarantors named therein and the Bank of New York Mellon Trust Company, N.A., as trustee;

 

  (f)

any debt securities guaranteed by Brandbrew or Brandbev under the U.S. commercial paper programme of short-term notes due up to maximum of 364 days from the date of issue issued by ABIWW pursuant to dealer agreements, an issuing and paying agency agreement, the master note, guarantees and private placement memoranda, each dated on or around 6 June 2011 and, as applicable, amended and restated on or around 20 August 2014 and further amended and restated on or around November 18, 2019;

 

  (g)

any debt securities guaranteed by Brandbev or Brandbrew under the Indenture among ABIFI, the Issuer, Brandbev, Brandbrew, the other subsidiary guarantors listed therein and The Bank of New York Mellon Trust Company, N.A. as trustee entered into on 17 January 2013;

 

  (h)

any debt securities guaranteed by Brandbev or Brandbrew under the Indenture among ABIFI, the Issuer, Brandbev, Brandbrew, the other subsidiary guarantors listed therein and The Bank of New York Mellon Trust Company, N.A. as trustee entered into on 25 January 2016;

 

  (i)

any debt securities guaranteed by Brandbrew or Brandbev under an Indenture, dated 16 December 2016 among ABIWW, the Issuer, the subsidiary guarantors named therein and The Bank of New York Mellon Trust Company, N.A., as trustee;

 

  (j)

any debt securities guaranteed by Brandbev or Brandbrew under the Indenture among ABIFI, the Issuer, Brandbev, Brandbrew, the other subsidiary guarantors listed therein and The Bank of New York Mellon Trust Company, N.A. as trustee entered into on 15 May 2017;

 

  (k)

any bonds guaranteed by Brandbev and Brandbrew under the Indenture, dated 4 April 2018 among ABIWW and The Bank of New York Mellon Trust Company, N.A., as trustee;

 

  (l)

any bonds guaranteed by Brandbev and Brandbrew under the Indenture, dated 13 November 2018 among Anheuser-Busch and ABIWW and The Bank of New York Mellon Trust Company, N.A., as trustee; and

 

  (m)

any refinancing (in whole or part) of any of the above items or this Agreement for the same or a lower amount.

 

- 31 -


Overall Commitment” of a Lender means:

 

  (a)

its Revolving Facility Commitment; or

 

  (b)

in the case of a Dollar Swingline Lender or a Euro Swingline Lender that does not have a Revolving Facility Commitment, the Revolving Facility Commitment of a Lender that is an Affiliate of that Dollar Swingline Lender or Euro Swingline Lender.

Parent Contribution Agreement” means the parent contribution agreement to be entered into between the Company and ABIWW, in the agreed form or in form and substance equivalent in all material respects to the parent contribution agreement entered into in relation to the Existing Credit Facilities.

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 U.S. Pension Benefit Guaranty Corporation, or any entity succeeding to all or any of its functions under ERISA.

Permitted Reorganisation” has the meaning given to that term in Clause 31.4 (Merger).

Permitted Security” means:

 

  (a)

the Security listed in the document referred to in paragraph 14 of Schedule 2 (Conditions Precedent to the 2021 Effective Date) to the 2021 Amendment and Restatement Agreement except to the extent the principal amount secured by that Security exceeds the amount stated in that document;

 

  (b)

any Security entered into pursuant to any Finance Document;

 

  (c)

any lien arising by operation of law and in the ordinary course of business;

 

  (d)

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

 

  (i)

the Security was not created in contemplation of the acquisition (or proposed acquisition) of that asset by a member of the Group; and

 

  (ii)

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

 

  (e)

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

 

  (i)

the Security was not created in contemplation of the acquisition (or proposed acquisition) of that company; and

 

  (ii)

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

 

- 32 -


  (f)

any Security created in the ordinary course of business to secure any excise or import taxes or duties owed to any state or state agency or authority (among others and without limitation, a mortgage over any real property required by the relevant state, state agency or authority to secure the type of taxes or duties mentioned above will be considered as within the ordinary course of business);

 

  (g)

any Security arising out of rights of consolidation, combination, netting or set–off over any current and/or deposit accounts with a bank or financial institution, where it is necessary to agree to those rights in connection with the opening or operation of any bank accounts or in connection with a treasury management arrangement operated by a member of the Group, in each case, in the ordinary course of its business or risk management;

 

  (h)

any Security resulting from retention of title or conditional sale arrangements which are contained in the normal terms of supply of a supplier of goods to a member of the Group, where the goods are acquired by such member of the Group in the ordinary course of business and the arrangements do not constitute Financial Indebtedness;

 

  (i)

any Security arising out of rights of netting or set–off arrangements which are contained in the normal terms of supply of a supplier of goods and/or services to a member of the Group, where the goods are acquired or services utilised by such member of the Group in the ordinary course of business and the arrangements do not constitute Financial Indebtedness;

 

  (j)

any Security arising in the ordinary course of business of a member of the Group in relation to that Group member’s participation in or trading on or through a clearing system or investment, commodity or stock exchange, where, in each case, the Security arises under the rules or normal procedures or legislation governing the clearing system or exchange and neither with the intention of creating security nor in connection with the borrowing or raising of money;

 

  (k)

any Security created by a member of the Group in favour of an Obligor;

 

  (l)

any Security created pursuant to or in respect of any Judicial Deposit;

 

  (m)

any Security created or outstanding with the prior written consent of the Majority Lenders;

 

  (n)

pledges over and assignments of documents of title, insurance policies and sale contracts in relation to goods or services created or made in the ordinary course of business of a member of the Group to secure the purchase price of such goods or services;

 

  (o)

any Security created by an Excluded Subsidiary; or

 

  (p)

any Security over or affecting any assets of the Group which does not fall within any of paragraphs (a) to (o) above provided that the total of (i) the aggregate amount of Financial Indebtedness secured by all Security referred to in this paragraph (p) and (ii) the total amount of Subsidiary Financial Indebtedness (without double counting Subsidiary Financial Indebtedness incurred under sub-paragraph (i) of this paragraph (p)) does not, at any time, exceed US$6,000,000,000 (or its equivalent in any other currency).

 

- 33 -


Plan” means a Single Employer Plan or a Multiple Employer Plan.

Qualifying Lender” has the meaning given to that term in Clause 23 (Tax Gross-up and Indemnities).

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

 

  (a)

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

 

  (b)

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

 

  (c)

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

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

Quoted Tenor” means, in relation to the Screen Rate for a Term Reference Rate applicable to Revolving Facility Loans in a currency, any period for which that Screen Rate is customarily displayed on the relevant page or screen of an information service.

Rate Switch Currency” means any currency for which there are Compounded Rate Terms.

Rate Switch Date” means:

 

  (a)

in relation to a Rate Switch Currency, the earlier of:

 

  (i)

the Backstop Rate Switch Date; and

 

  (ii)

any Rate Switch Trigger Event Date,

for that Rate Switch Currency; or

 

  (b)

in relation to a Rate Switch Currency which:

 

  (i)

becomes a Rate Switch Currency after the 2021 Amendment and Restatement Date; and

 

  (ii)

for which there is a date specified as the “Rate Switch Date” in the Compounded Rate Terms for that currency,

that date.

 

- 34 -


Rate Switch Trigger Event” means:

 

  (a)

in relation to any Rate Switch Currency and the Screen Rate for the Term Reference Rate applicable to Revolving Facility Loans in that Rate Switch Currency:

 

  (i)

 

  (A)

the administrator of that Screen Rate or its supervisor publicly announces that such administrator is insolvent; or

 

  (B)

information is published in any order, decree, notice, petition or filing, however described, of or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably confirms that the administrator of that Screen Rate is insolvent,

provided that, in each case, at that time, there is no successor administrator to continue to provide that Screen Rate;

 

  (ii)

the administrator of that Screen Rate publicly announces that it has ceased or will cease, to provide that Screen Rate for any Quoted Tenor permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that Screen Rate for that Quoted Tenor;

 

  (iii)

the supervisor of the administrator of that Screen Rate publicly announces that such Screen Rate has been or will be permanently or indefinitely discontinued for any Quoted Tenor; or

 

  (iv)

the administrator of that Screen Rate or its supervisor publicly announces that that Screen Rate for any Quoted Tenor may no longer be used; and

 

  (b)

in relation to any Rate Switch Currency and the Screen Rate for the LIBOR applicable to Revolving Facility Loans in that Rate Switch Currency, the supervisor of the administrator of that Screen Rate publicly announces or publishes information:

 

  (i)

stating that that Screen 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); and

 

  (ii)

with awareness that any such announcement or publication will engage certain triggers for fallback provisions in contracts which may be activated by any such pre-cessation announcement or publication.

 

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Rate Switch Trigger Event Date” means, in relation to a Rate Switch Currency:

 

  (a)

in the case of an occurrence of a Rate Switch Trigger Event for that Rate Switch Currency described in paragraph (a)(i) of the definition of Rate Switch Trigger Event, the date on which the relevant Screen Rate ceases to be published or otherwise becomes unavailable;

 

  (b)

in the case of an occurrence of a Rate Switch Trigger Event for that Rate Switch Currency described in paragraphs (a)(ii), (a)(iii) or (a)(iv) of the definition of Rate Switch Trigger Event, the date on which the relevant Screen Rate for the relevant Quoted Tenor ceases to be published or otherwise becomes unavailable; and

 

  (c)

in the case of an occurrence of a Rate Switch Trigger Event for that Rate Switch Currency described in paragraph (b) of the definition of Rate Switch Trigger Event, the date on which the relevant Screen 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 Screen Rate).

Recycled Content” means the percentage of PET recycled content used in PET primary packaging, as determined on the basis of the methodology used for the determination of the relevant metric in the Initial Sustainability KPI Report.

Recycled Content Target” means, in respect of any financial year of the Company commencing with the financial year ending on 31 December 2021, the Recycled Content target, as set out in the following table:

 

Financial year

   Target (%)  

Financial year ending on 31 December 2021

     25  

Financial year ending on 31 December 2022

     28  

Financial year ending on 31 December 2023

     30  

Financial year ending on 31 December 2024

     35  

Financial year ending on 31 December 2025

     40  

Financial year ending on 31 December 2026

     45  

Financial year ending on 31 December 2027

     50  

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

 

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  (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

 

  (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; or

 

  (iii)

in relation to €STR, an amount equal to:

 

  (A)

the rate which represents the relevant Reference Bank’s wholesale unsecured overnight borrowing costs for euro denominated amounts for the relevant day;

minus

 

  (B)

the €STR Spread.

Reference Banks” means such banks as may be appointed by the Agent from time to time in consultation with the Company (provided that such entity has consented to its appointment).

Regulations T, U and X” means, respectively, Regulations T, U and X of the Board of Governors of the Federal Reserve System of the United States (or any successor) as now and from time to time in effect from the date of this Agreement.

Related Fund” in relation to a fund (the first fund), means a fund which is managed or advised by the same investment manager or adviser as the first fund or, if it is managed by a different investment manager or adviser, a fund whose investment manager or adviser is an Affiliate of the investment manager or adviser of the first fund.

 

- 37 -


Relevant Borrower” means, in relation to a Loan, the Borrower which borrowed such Loan.

Relevant Jurisdiction” means, in relation to an Obligor, its jurisdiction of incorporation.

Relevant Market” means:

 

  (a)

subject to paragraph (b) below:

 

  (i)

in relation to euro, and subject to paragraph (ii) below, the European interbank market;

 

  (ii)

in relation to euro and the Euro Swingline Facility, the Euro wholesale market;

 

  (iii)

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 Compounded Rate Terms.

Relevant Tenor” has the meaning given to that term in the applicable Compounded Rate Terms.

Renewal Request” means a written notice delivered to the Agent in accordance with Clause 6.6 (Renewal of a Letter of Credit).

Renewable Electricity” means the percentage of global electricity under contract in respect of the Group’s beverage facilities and Vertical Operations which is attained from renewable sources, as determined on the basis of the methodology used for the determination of the relevant metric in the Initial Sustainability KPI Report.

Renewable Electricity Target” means, in respect of any financial year of the Company commencing with the financial year ending on 31 December 2021, the Renewable Electricity target, as set out in the following table:

 

Financial year

   Target (%)  

Financial year ending on 31 December 2021

     70  

Financial year ending on 31 December 2022

     73  

Financial year ending on 31 December 2023

     80  

Financial year ending on 31 December 2024

     86  

Financial year ending on 31 December 2025

     90  

Financial year ending on 31 December 2026

     95  

Financial year ending on 31 December 2027

     100  

 

- 38 -


Repeating Representations” means each of the representations set out in Clause 29.2 (Status) to Clause 29.6 (Validity and admissibility in evidence), paragraphs (a) and (b) of Clause 29.8 (No default) and Clause 29.11 (Pari passu ranking).

Resignation Letter” means a letter substantially in the form set out in Schedule 5 (Form of Resignation Letter).

Restricted Person” means any person:

 

  (a)

included on the “consolidated list of financial sanctions targets” maintained by HM Treasury;

 

  (b)

in a country which is subject to United Nations sanctions;

 

  (c)

included on the list of “Specially Designated Nationals and Blocked Persons” maintained by the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury, as updated or amended from time to time, or any similar list issued by OFAC;

 

  (d)

whose property has been blocked, or is subject to seizure, forfeiture or confiscation, by any order relating to terrorism or money laundering issued by the President, Attorney General, Secretary of State, Secretary of Defense, Secretary of the Treasury or any other U.S. State or Federal governmental official or entity; or

 

  (e)

included on the “List of Persons and Entities Subject to Financial Sanctions” or any similar list maintained by the European Union.

Revolving Facility” means the revolving credit facility made available under this Agreement as described in paragraph (b) of Clause 2.1 (The Facilities).

Revolving Facility Commitment” means:

 

  (a)

in relation to a Lender as at the 2021 Amendment and Restatement Date, the amount in the Base Currency set opposite its name under the heading “Revolving Facility Commitment” in Part 3A of Schedule 1 (The 2021 Amendment and Restatement Date Parties) and the amount of any other Revolving Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase); and

 

  (b)

in relation to any other Lender, the amount in the Base Currency of any Revolving Facility Commitment 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.

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

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

 

- 39 -


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

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

Rollover Loan” means one or more Revolving Facility Loans:

 

  (a)

made or to be made on the same day that:

 

  (i)

a maturing Revolving Facility 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 maturing Revolving Facility Loan or the relevant claim in respect of that Letter of Credit;

 

  (c)

in the same currency as the maturing Revolving Facility Loan (unless it arose as a result of the operation of Clause 14.2 (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 Revolving Facility Loan; or

 

  (ii)

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

Sale” means the sale of all or substantially all of the assets of the Company (whether in a single transaction or a series of related transactions).

Sanctioned Country” means a country or territory that is the subject of comprehensive Sanctions (being, as at the 2021 Amendment and Restatement Date, the Crimea, Cuba, Iran, North Korea, and Syria).

Sanctions” means:

 

  (a)

United Nations sanctions imposed pursuant to any United Nations Security Council Resolution;

 

  (b)

US sanctions administered or enforced by the Office of Foreign Assets Control of the US Department of the Treasury or the US Department of State;

 

  (c)

EU restrictive measures implemented pursuant to any EU Council or Commission Regulation or Decision adopted pursuant to a Common Position in furtherance of the EU’s Common Foreign and Security Policy; and

 

  (d)

UK sanctions (i) enacted by secondary legislation pursuant to the Sanctions and Anti-Money Laundering Act 2018; and/or (ii) administered or enforced by Her Majesty’s Treasury of the UK.

S&P” means Standard & Poor’s Rating Group, a division of The McGraw-Hill Companies, or any successor thereto.

 

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Screen Rate” means:

 

  (a)

in relation to LIBOR, the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed (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);

 

  (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

 

  (c)

in relation to €STR, the euro short-term rate administered by the European Central Bank (or any other person which takes over the administration of that rate) displayed (before any correction, recalculation or republication by the administrator) on page EURSTR= of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate),

or, in the case of paragraphs (b) and (c), 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 Company.

Second Extended Final Termination Date” has the meaning given to such term in Clause 5.6 (Extension Option).

Security” means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.

Separate Loan” has the meaning given to that term in Clause 15 (Repayment).

Shareholders’ Approval” means the valid adoption of a resolution by the shareholders’ meeting of the Company validly approving (a) Clause 17 (Mandatory Prepayment) and (b) any other provision in this Agreement granting rights to third parties which could affect the Company’s assets or could impose an obligation on the Company where in each case the exercise of those rights is dependent on the occurrence of a public take-over bid or a Change of Control, in accordance with article 7:151 of the Belgian Companies and Associations Code.

Single Employer Plan” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, subject to Title IV of ERISA, that (a) is maintained or contributed to by any Obligor or any ERISA Affiliate for employees of any Obligor or any ERISA Affiliate and no person other than the Obligors and the ERISA Affiliates or (b) was so maintained or contributed to and in respect of which any Obligor or any ERISA Affiliate could have liability under Section 4069 of ERISA in the event such plan has been or were to be terminated.

 

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Specified Time” means a day or time determined in accordance with Schedule 6 (Timetables).

Subsidiary” means an entity of which a person has direct or indirect control or owns directly or indirectly more than 50 per cent. of the voting share capital or similar right of ownership and control for this purpose means the power to direct the management and the policies of the entity whether through the ownership of voting capital, by contract or otherwise.

Subsidiary Financial Indebtedness” means the aggregate Financial Indebtedness of the Group (calculated on a consolidated basis) minus:

 

  (a)

an amount equal to the aggregate principal or capital amount of all existing subsidiary financial indebtedness listed in the document referred to in paragraph 15 of Schedule 2 (Conditions Precedent to the 2021 Effective Date) to the 2021 Amendment and Restatement Agreement;

 

  (b)

any Financial Indebtedness of any person who becomes a member of the Group after the date of this Agreement which is incurred under arrangements in existence at the date that person becomes a member of the Group (and not entered into in contemplation of that person becoming (or proposed to be becoming) a member of the Group), but only for a period of one year from the date that person becomes a member of the Group and only to the extent the principal amount of the Financial Indebtedness has not been incurred since the date that person became a member of the Group;

 

  (c)

any Financial Indebtedness of a Non-Obligor where (i) such Non-Obligor has on-lent substantially the entire proceeds of such Financial Indebtedness to one or more Obligors; and (ii) such Non-Obligor holds no material assets other than its claims against such Obligors or Obligor in relation to such loans;

 

  (d)

any Financial Indebtedness of an Obligor; and

 

  (e)

any Financial Indebtedness of Ambev (or any Subsidiary of Ambev) until such time as Ambev becomes a wholly-owned Subsidiary of the Company.

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).

Sustainability Compliance Certificate” means a certificate substantially in the form set out in Schedule 15 (Form of Sustainability Compliance Certificate).

Sustainability Discount” means the [***]% Sustainability Discount, the [***]% Sustainability Discount and the [***]% Sustainability Discount, each as defined in paragraphs (i), (ii) and (iii) of Clause 19.4 (Calculation of Margin – Sustainability Discount and Sustainability Premium).

 

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Sustainability Performance Targets” means each of the following targets:

 

  (a)

the Total Water Use Target;

 

  (b)

the Recycled Content Target;

 

  (c)

the Renewable Electricity Target; and

 

  (d)

the GHG Emissions Target.

Sustainability Premium” has the meaning given to that term in Clause 19.4 (Calculation of Margin – Sustainability Discount and Sustainability Premium) (subject to any amendment in accordance with Clause 19.7 (Changes to the Greenhouse Gas Protocol)).

Sustainability Report Assurer” means KPMG Bedrijfsrevisoren CVBA or any other firm appointed by the Company from time to time to provide an independent practitioner’s limited assurance report in respect of the sustainability report section of the Annual Report to the stakeholders of the Company.

Syndication Date” means the day on which the Agent confirms (for and on behalf of the Arrangers) that syndication of the Facilities has been completed.

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 (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 Issuing Bank is under a liability under a Letter of Credit.

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

Term Reference Rate” means:

 

  (a)

in relation to any Revolving Facility Loan in US$ or Sterling, LIBOR; or

 

  (b)

in relation to any Revolving Facility Loan in euro, EURIBOR.

Total Commitments” means US$10,100,000,000 at the 2021 Amendment and Restatement Date.

Total Dollar Swingline Commitments” means the aggregate of the Dollar Swingline Commitments, being $3,000,000,000 at the 2021 Amendment and Restatement Date.

Total Euro Swingline Commitments” means the aggregate of the Euro Swingline Commitments, being €2,000,000,000 at the 2021 Amendment and Restatement Date.

 

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Total Revolving Facility Commitments” means the aggregate of the Revolving Facility Commitments, being US$10,100,000,000 at the 2021 Amendment and Restatement Date.

Total Water Use” means the number of hectolitres of water used by the Group by hectolitre of production at its beverage facilities (excluding Vertical Operations) as determined on the basis of the methodology used for the determination of the relevant metric in the Initial Sustainability KPI Report.

Total Water Use Target means, in respect of any financial year of the Company commencing with the financial year ending 31 December 2021, a target of the Total Water Use for any Financial Year, as set out in the following table:

 

Financial year

   Target (hl/hl)  

Financial year ending on 31 December 2021

     2.65  

Financial year ending on 31 December 2022

     2.62  

Financial year ending on 31 December 2023

     2.58  

Financial year ending on 31 December 2024

     2.55  

Financial year ending on 31 December 2025

     2.51  

Financial year ending on 31 December 2026

     2.48  

Financial year ending on 31 December 2027

     2.45  

Transfer Certificate” means a certificate substantially in the form set out in Part 5 of Schedule 3 (Requests) or any other form agreed between the Agent and the Company.

Transfer Date” means, in relation to a transfer, the later of:

 

  (a)

the proposed Transfer Date specified in the Transfer Certificate; and

 

  (b)

the date on which the Agent executes the Transfer Certificate.

UK Blocking Regulation” means Regulation (EU) No 2271/96 of the European Parliament and of the Council of 22 November 1996 protecting against the effects of the extraterritorial application of legislation adopted by a third country, and actions based on or resulting therefrom as it forms part of domestic law of the United Kingdom by virtue of the European Union (Withdrawal) Act 2018.

Undisclosed Administration” means an undisclosed administration (stille curatele) applicable to a Lender, imposed by the DCB under or based on section 1:76 of the DFSA, as to Lenders which are the subject of home jurisdiction supervision by the DCB under the DFSA and in relation to which the DCB has not publicly disclosed the appointment of a custodian (curator) with regard to the relevant Lender.

 

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

US Dollar”, “US Dollars”, “US$”, “dollar” and “$” means the lawful currency of the United States of America from time to time.

U.S.” and “United States” means the United States of America, its territories, possessions and other areas subject to the jurisdiction of the United States of America.

U.S. Borrower” means a Borrower whose jurisdiction of organisation is a state of the United States of America or the District of Columbia.

U.S. Guarantor” means a Guarantor whose jurisdiction of organisation is a state of the United States of America or the District of Columbia.

U.S. Obligor” means any U.S. Borrower or U.S. Guarantor.

U.S. Tax” means any federal, state, local income, gross receipts, license, premium, windfall profits, customs duties, capital stock, franchise, profits, withholding, social security (or similar), real property, personal property, sales, use, registration, value added, alternative or add-on minimum, estimated or other tax of any kind whatsoever, imposed by the United States or any political subdivision thereof or taxing authority therein, including any interest, penalty or addition thereto, whether disputed or not.

U.S. 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 on which a Utilisation is made.

Utilisation Request” means a notice substantially in the relevant form set out in Part 1 of Schedule 3 (Requests).

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) as amended; 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.

Vertical Operations” means plants of the Group which do not produce beer, water or soft drinks (including, but not limited to, malting plants and packaging facilities).

 

- 45 -


Withdrawal Liability” has the meaning specified in Part I of Subtitle E of Title IV of ERISA.

 

1.2

Construction

 

  (a)

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

 

  (i)

the “Agent”, an “Arranger”, any “Finance Party”, any “Issuing Bank”, any “Lender”, any “Obligor”, any “Party” or any other person shall be construed so as to include its successors in title, permitted assigns and permitted transferees;

 

  (ii)

a document in “agreed form” is a document which is in a form agreed in writing by or on behalf of the Company and the Agent;

 

  (iii)

assets” includes present and future properties, revenues and rights of every description;

 

  (iv)

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;

 

  (v)

a “Finance Document” or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended or restated;

 

  (vi)

guarantee” means (other than in Clause 28 (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 provide assurance to the beneficiary of such guarantee that another person will or can meet any of its liabilities;

 

  (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)

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 become payable by a Lender in relation to that Letter of Credit;

 

  (ix)

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

 

- 46 -


  (x)

a “regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;

 

  (xi)

the “date of this Agreement” means 26 February 2010;

 

  (xii)

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

 

  (xiii)

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” 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 the Borrower and the following conditions being met:

 

  (i)

the account is with the Agent (if the cash cover is to be provided for all the Lenders) or with a Lender (if the cash cover is to be provided for that Lender);

 

  (ii)

subject to paragraph (b) of Clause 7.5 (Cash cover by Borrower), until no amount is or may be outstanding under that Letter of Credit, withdrawals from the account may only be made to pay a Finance Party amounts due and payable to it under this Agreement in respect of that Letter of Credit; and

 

  (iii)

the Borrower has executed a security document over that account, in form and substance satisfactory to the Agent or the Lender with which that account is held, creating a first ranking Security over that account.

 

  (f)

A Default or an Event of Default is “continuing” if it has not been remedied or waived in writing.

 

  (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

 

- 47 -


  (iii)

the Issuing 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 (g)(i) and (g)(ii) above is the amount of the relevant cash cover or reduction.

 

  (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)

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.

 

  (k)

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 Company.

 

  (l)

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

 

  (m)

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

 

  (i)

Schedule 13 (Compounded Rate Terms); or

 

  (ii)

any earlier Compounded Rate Supplement.

 

  (n)

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

 

  (i)

Schedule 14 (Daily Non-Cumulative Compounded RFR Rate); or

 

  (ii)

any earlier Compounding Methodology Supplement.

 

1.3

Dutch terms

In this Agreement, where it relates to a Dutch entity, a reference to:

 

  (a)

a “necessary action to authorise” where applicable, includes without limitation:

 

  (i)

any action required to comply with the Works Councils Act of the Netherlands (Wet op de ondernemingsraden); and

 

- 48 -


  (ii)

obtaining an unconditional positive advice (advies) from the competent works council(s);

 

  (b)

financial assistance” means any act contemplated by:

 

  (i)

(for a besloten vennootschap met beperkte aansprakelijkheid) Article 2:207(c) of the Dutch Civil Code; or

 

  (ii)

(for a naamloze vennootschap) Article 2:98(c) of the Dutch Civil Code;

 

  (c)

a “Security” includes any mortgage (hypotheek), pledge (pandrecht), retention of title arrangement (eigendomsvoorbehoud), privilege (voorrecht), right of retention (recht van retentie), right to reclaim goods (recht van reclame), and, in general, any right in rem (beperkt recht), created for the purpose of granting security (goederenrechtelijk zekerheidsrecht);

 

  (d)

 

  (i)

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

 

  (ii)

a “moratorium” includes surseance van betaling and “a moratorium is declared” or occurs includes surseance verleend;

 

  (iii)

any “step” or “procedure” taken in connection with insolvency proceedings includes a Dutch entity having filed a notice under Section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990);

 

  (iv)

a “trustee in bankruptcy” includes a curator;

 

  (v)

an “administrator” includes a bewindvoerder; and

 

  (vi)

an “attachment” includes a beslag.

 

1.4

Luxembourg terms

In this Agreement, where it relates to any Luxembourg Obligor, a reference to:

 

  (a)

constitutional documents” includes its articles of association;

 

  (b)

a “liquidator”, “trustee in bankruptcy”, “judicial custodian”, “compulsory manager”, “receiver”, “administrator receiver”, “administrator” or similar officer includes any:

 

  (i)

juge-commissaire and/or insolvency receiver (curateur) appointed under the Luxembourg Commercial Code;

 

- 49 -


  (ii)

liquidateur appointed under Articles 1100-1 to 1100-15 of the Luxembourg act of 10 August 1915 on commercial companies, as amended;

 

  (iii)

juge-commissaire and/or liquidateur appointed under Article 1200-1 of the Luxembourg act dated 10 August 1915 on commercial companies, as amended;

 

  (iv)

commissaire appointed under the Grand-Ducal decree of 24 May 1935 on the controlled management regime or under Articles 593 to 614 of the Luxembourg Commercial Code; and

 

  (v)

juge délégué appointed under the Luxembourg act of 14 April 1886 on the composition to avoid bankruptcy, as amended;

 

  (c)

a “winding-up”, “administration” or “dissolution” includes, without limitation, bankruptcy (faillite), liquidation, composition with creditors (concordat préventif de faillite), moratorium or reprieve from payment (sursis de paiement) and controlled management (gestion contrôlée); and

 

  (d)

a person being “unable to pay its debts” includes that person being in a state of cessation of payments (cessation de paiements).

 

1.5

Belgian terms

In this Agreement, a reference (in the context of Belgian law or a Belgian Obligor) to:

 

  (a)

a “liquidator”, “trustee in bankruptcy”, “receiver”, “administrative receiver”, “administrator” (in relation to a bankruptcy) or “similar officerincludes any insolventiefunctionaris/praticien de l’insolvabilité, curator / curateur, vereffenaar / liquidateur, gedelegeerd rechter / juge délégué, gerechtsmandataris / mandataire de justice, voorlopig bewindvoerder / administrateur provisoire, gerechtelijk bewindvoerder/administrateur judiciaire, mandataris ad hoc/mandataire ad hoc and ondernemingsbemiddelaar/médiateur d’entreprise, as applicable;

 

  (b)

a person being “unable to pay” its debts is that person being in a state of cessation of payments (staking van betaling / cessation de paiements);

 

  (c)

a “moratorium” or “reorganisation” includes any gerechtelijke reorganisatie/réorganisation judiciaire or staking van betaling/cessation de paiements;

 

  (d)

“commences negotiations with any one or more of its creditors (excluding any Finance Party in its capacity as such) with a view to the general readjustment or rescheduling of all or a material part of its indebtedness” includes any negotiations conducted with a view to reaching a settlement agreement (minnelijk akkoord/accord amiable) with two or more of its creditors pursuant to Book XX of the Belgian Economic Law Code (Wetboek Economisch Recht/Code de droit économique);

 

- 50 -


  (e)

an “insolvency” includes any insolventieprocedure/procedure d’insolvabilité, gerechtelijke reorganisatie / réorganisation judiciaire, faillissement / faillite and any other concurrence between creditors (samenloop van schuldeisers / concours des créanciers);

 

  (f)

a “composition”, “compromise”, “assignment” or “arrangement” includes a minnelijk akkoord met schuldeisers/accord amiable avec des créanciers, collectief akkoord/accord collectif or reorganisatie door overdracht onder gerechtelijk gezag/réorganisation par transfert sous autorité de justice, as applicable;

 

  (g)

winding up”, “administration”, “liquidation” or “dissolution” includes any vereffening / liquidation, ontbinding / dissolution, faillissement / faillite and sluiting van een onderneming / fermeture d’enterprise;

 

  (h)

an “expropriation”, “attachment”, “sequestration”, “distress”, “execution” or “analogous events” includes any onteigening/expropriation, uitvoerend beslag / saisie exécutoire, sekwester/séquestre and bewarend beslag / saisie conservatoire;

 

  (i)

a “Security” includes any mortgage (hypotheek / hypothèque), pledge (pand / gage), any mandate to grant a mortgage or pledge or any other real security (mandaat/mandate) (privilege (voorrecht / privilège), reservation of title arrangement (eigendomsvoorbehoud / réserve de propriété), any real surety (zakelijke zekerheid / sûreté réelle) and any transfer by way of security (overdracht ten titel van zekerheid / transfert à titre de garantie);

 

  (j)

an “amalgamation”, “demerger”, “merger”, “consolidation” includes an overdracht van algemeenheid/transfert d’universalité, overdracht van bedrijfstak/transfert de branche d’activité, splitsing/scission and fusie/fusion and an assimilated transaction (gelijkgestelde verrichting/opération assimilée) in accordance with the Belgian Companies and Associations Code;

 

  (k)

constitutional documents” means de oprichtingsakte / acte constitutif, statuten / statuts and uittreksel van de Kruispuntbank voor Ondernemingen / Banque Carrefour des Entrepises; and

 

  (l)

guarantee” means, only for the purpose of the guarantee granted by a Belgian Obligor pursuant to Clause 28 (Guarantee and Indemnity), an independent guarantee and not a surety (borg / cautionnement).

 

1.6

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.

 

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2.

THE FACILITIES

 

2.1

The Facilities

 

  (a)

Subject to the terms of this Agreement, the Lenders make available to the Borrowers, a multicurrency revolving credit facility in an aggregate amount the Base Currency Amount of which is equal to the Total Revolving Facility Commitments.

 

  (b)

Any Borrower will be permitted to borrow (on a several basis) under the Revolving Facility.

 

2.2

Increase

 

  (a)

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

 

  (i)

the Commitments of a Lender in accordance with:

 

  (A)

Clause 16.1 (Illegality); or

 

  (B)

paragraph (a) of Clause 16.5 (Right of replacement or repayment and cancellation in relation to a single Lender or Issuing Bank); or

 

  (ii)

the Available Commitments of a Defaulting Lender in accordance with Clause 16.6 (Right of cancellation in relation to a Defaulting Lender),

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 (or, in the case of a Euro Swingline Commitment, in euro) 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 take effect on the date specified by the Company 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:

 

  (i)

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; and

 

  (ii)

in the case of an increase in the Total Revolving Facility Commitments, the Issuing Bank has consented to that increase.

 

  (d)

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.

 

  (e)

The Company may pay to the Increase Lender a fee in the amount and at the times agreed between the Company and the Increase Lender in a letter between the Company and the Increase Lender setting out that fee. A reference in this Agreement to a Fee Letter shall include any letter referred to in this paragraph (e).

 

  (f)

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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  (g)

Clause 33.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 in relation to an Increase Lender as if references in that Clause to:

 

  (i)

an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;

 

  (ii)

the “New Lender” were references to that “Increase Lender”; and

 

  (iii)

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

 

2.3

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.

 

2.4

Obligors’ Agent

 

  (a)

Each Obligor (other than the Company) by its execution of this Agreement or an Accession Letter irrevocably appoints the Company to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:

 

  (i)

the Company on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions (including, in the case of a Borrower, Utilisation Requests), to execute on its behalf any Accession Letter, 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

 

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  (ii)

each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Company, and in each case the Obligor shall be bound as though the Obligor itself had given the notices and instructions (including, without limitation, any Utilisation Requests) or executed or made the agreements or effected the amendments, supplements or variations, or received the relevant notice, demand or other communication.

 

  (b)

Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Obligors’ Agent or given to the Obligors’ Agent under any Finance Document on behalf of another Obligor or in connection with any Finance Document (whether or not known to any other Obligor and whether occurring before or after such other Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Obligors’ Agent and any other Obligor, those of the Obligors’ Agent shall prevail.

 

3.

PURPOSE

 

3.1

Purpose

The Relevant Borrower shall apply all amounts borrowed by it under the Revolving Facility towards the general corporate and/or working capital purposes of the Group.

 

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

No Borrower may deliver a Utilisation Request unless the Agent has received all of the documents and other evidence listed in Part 1 of Schedule 2 (Conditions Precedent) which must be delivered on or before the first Utilisation Date), in form and substance satisfactory to the Agent. The Agent shall notify the Company and the Lenders promptly upon being so satisfied.

 

4.2

Further conditions precedent

The Lenders will only be obliged to comply with Clause 5.4 (Lenders’ participation) in relation to a Utilisation if, on the date of the Utilisation Request and on the proposed Utilisation Date:

 

  (a)

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

 

  (b)

the Repeating Representations (but excluding, in the case of a Rollover Loan, paragraph (a) of Clause 29.8 (No default)) to be made by each Obligor are true in all material respects.

 

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4.3

Conditions relating to Optional Currencies

 

  (a)

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

 

  (i)

it is readily available in the amount required and freely convertible into the Base Currency in the wholesale market for that currency at the Specified Time or, if later, on the date the Agent receives the relevant Utilisation Request and the Utilisation Date for that Utilisation; and

 

  (ii)

it has been approved by the Agent (acting on the instructions of all the Lenders under the Revolving Facility) on or prior to receipt by the Agent of the relevant Utilisation Request for that Utilisation.

 

  (b)

If the Agent has received a written request from the Company for a currency to be approved under paragraph (a)(ii) above, the Agent will confirm to the Company by the Specified Time:

 

  (i)

whether or not the relevant Lenders have granted their approval; and

 

  (ii)

if approval has been granted, the minimum amount (and, if required, integral multiples) for any subsequent Utilisation in that currency.

 

4.4

Maximum number of Utilisations

 

  (a)

A Borrower (or the Company) may not deliver a Utilisation Request if as a result of the proposed Utilisation 32 or more Revolving Facility Loans would be outstanding.

 

  (b)

Any Loan made by a single Lender under Clause 14.2 (Unavailability of a currency) shall not be taken into account in this Clause 4.4.

 

  (c)

Any Separate Loan shall not be taken into account in this Clause 4.4.

 

5.

UTILISATION – LOANS

 

5.1

Delivery of a Utilisation Request

A Borrower (or the Company 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 Borrower and the Facility to be utilised;

 

  (ii)

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

 

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  (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 20 (Interest Periods).

 

  (b)

Only one Utilisation may be requested in any Utilisation Request.

 

5.3

Currency and amount

 

  (a)

The currency specified in a Utilisation Request must be the Base Currency or an Optional Currency.

 

  (b)

The amount of the proposed Utilisation must be:

 

  (i)

if the currency selected is the Base Currency, a minimum of US$25,000,000 or, if less, the Available Facility; or

 

  (ii)

if the currency selected is euro, a minimum of US$25,000,000 or, if less, the Available Facility; or

 

  (iii)

if the currency selected is an Optional Currency, other than euro, the minimum amount specified by the Agent pursuant to paragraph (b)(ii) of Clause 4.3 (Conditions relating to Optional Currencies) or, if less, the Available Facility.

 

5.4

Lenders’ participation

 

  (a)

If the conditions set out in this Agreement have been met, each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.

 

  (b)

The amount of each Lender’s participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.

 

  (c)

The Agent shall determine the Base Currency Amount of each Revolving Facility Loan which is to be made in an Optional Currency and shall notify each Lender of the amount, currency and the Base Currency Amount of each Loan and the amount of its participation in that Loan, in each case by the Specified Time.

 

5.5

Cancellation of Commitment

Any Commitment which is unutilised on the last day of the Availability Period shall be immediately cancelled.

 

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5.6

Extension Option

 

  (a)

In this Clause 5.6:

Applicable Final Termination Date” means, in relation to each Lender, the Final Termination Date in effect in respect of such Lender as at the date of an Extension Request;

Extended Final Termination Date” means:

 

  (i)

in respect of an exercise of the Extension Option before the second anniversary of the 2021 Amendment and Restatement Date, the First Extended Final Termination Date; and

 

  (ii)

in respect of an exercise of the Extension Option on or after the second anniversary of the 2021 Amendment and Restatement Date:

 

  (A)

for any Lender that agreed to extend its Applicable Final Termination Date in accordance with a previous exercise of the Extension Option, the Second Extended Final Termination Date; and

 

  (B)

(i) to the extent that no previous Extension Option has been exercised by such time, for any Lender or (ii) to the extent that a previous Extension Option has been exercised by such time, for any Lender that did not agree to extend its Applicable Final Termination Date in accordance with that previous exercise of the Extension Option, either the First Extended Final Termination Date or the Second Extended Final Termination Date (as the relevant Lender may in its discretion select in accordance with paragraph (f) below);

Extending Lender” means, in respect of an Extension Request, a Lender which notifies the Agent, within the timeframe set out in paragraph (f) below, that it accepts that Extension Request; and

First Extended Final Termination Date” means the date which is twelve months after the Amended Termination Date.

Second Extended Final Termination Date” means the date which is twenty four months after the Amended Termination Date.

 

  (b)

The Company may request an extension of the Applicable Final Termination Date (an “Extension Option”) by submitting an Extension Request to the Agent. Any Extension Request is irrevocable.

 

  (c)

An Extension Request shall not be valid unless:

 

  (i)

in respect of the first Extension Request delivered, it is delivered to the Agent at any time on or after the first anniversary of the 2021 Amendment and Restatement Date;

 

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  (ii)

in respect of the second Extension Request delivered, it is delivered to the Agent at any time on or after the second anniversary of the 2021 Amendment and Restatement Date;

 

  (iii)

it specifies the date on which the extension of the Applicable Final Termination Date is to take effect, which shall be a date not less than 20 days after the date of the Extension Request (the “Extension Effective Date”); and

 

  (iv)

it does not (and would not) cause paragraph (d) below to be contravened.

 

  (d)

The Extension Option may be exercised no more than twice in total.

 

  (e)

Upon receipt of a valid Extension Request, the Agent shall promptly notify each Lender. Each such Lender shall have the right, in its absolute discretion:

 

  (i)

to accept or decline such Extension Request; and

 

  (ii)

if such Extension Request is delivered on or after the second anniversary of the 2021 Amendment and Restatement Date and no previous Extension Option has been exercised by such time, or it is the second Extension Request delivered under this Agreement and the relevant Lender did not agree to extend its participation and Commitment in connection with the first such Extension Request, to decide whether to extend its Applicable Final Termination Date to the First Extended Final Termination Date or the Second Extended Final Termination Date in connection with such Extension Request.

 

  (f)

Any such Lender that wishes to accept the Extension Request shall so notify the Agent in writing no later than 10 days prior to the Extension Effective Date specified in that Extension Request, and if applicable in accordance with paragraph (e)(ii) above, shall confirm whether it wishes to extend its participation and Commitment to the First Extended Final Termination Date or the Second Extended Final Termination Date. If there are any Extending Lenders, then on each Extension Effective Date, the Applicable Final Termination Date in respect of the participation and Commitment of each such Extending Lender shall be extended to the Extended Final Termination Date applicable to that Extending Lender.

 

  (g)

The Agent will notify the Company in writing of each Lender’s decision in relation to an Extension Request as soon as practicable after it has been informed.

 

  (h)

Where a Lender that did not agree (or did not respond) to an Extension Request pursuant to paragraph (b) above is not replaced by the Company in accordance with Clause 44.4 (Replacement of Lender), the unutilised Commitment of such Lender will be automatically cancelled on the date falling one Month prior to the Final Termination Date applicable to that Lender.

 

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  (i)

Any utilised Commitments which become Available Commitments as a result of repayments to that Lender in the Month prior to the Applicable Final Termination Date shall be cancelled on the date of the relevant repayment. The Company shall repay the participation in each Loan of each Lender on the Final Termination Date applicable to that Lender, together with all other amounts due and owing to that Lender under the Finance Documents.

 

6.

UTILISATION – LETTERS OF CREDIT

 

6.1

The Revolving Facility

 

  (a)

The Revolving Facility may be utilised by way of Letters of Credit.

 

  (b)

Clause 5 (Utilisation – Loans) does not apply to utilisations by way of Letters of Credit.

 

6.2

Delivery of a Utilisation Request for Letters of Credit

A Borrower (or the Company on its behalf) may request a Letter of Credit to be issued by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time.

 

6.3

Completion of a Utilisation Request for Letters of Credit

Each Utilisation Request for a Letter of Credit is irrevocable (unless otherwise agreed by the Issuing Bank) and will not be regarded as having been duly completed unless:

 

  (a)

it specifies that it is for a Letter of Credit;

 

  (b)

it identifies the Borrower of the Letter of Credit;

 

  (c)

it identifies the Issuing Bank which has agreed to issue the Letter of Credit;

 

  (d)

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

 

  (e)

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

 

  (f)

the proposed beneficiary is not a Restricted Person and is not objected to by the Issuing Bank (acting reasonably);

 

  (g)

the form of Letter of Credit is attached;

 

  (h)

the Expiry Date of the Letter of Credit falls on or before the Final Termination Date; and

 

  (i)

the delivery instructions for the Letter of Credit are specified.

 

6.4

Currency and amount

 

  (a)

The currency specified in a Utilisation Request must be the Base Currency or an Optional Currency.

 

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  (b)

The amount of the proposed Letter of Credit must be an amount whose Base Currency Amount is not more than the Available Facility and which:

 

  (i)

if the currency selected is the Base Currency, is a minimum of US$25,000,000 or, if less, the Available Facility;

 

  (ii)

if the currency selected is euro, is a minimum of US$25,000,000 or, if less, the Available Facility; or

 

  (iii)

if the currency selected is an Optional Currency other than euro, is the minimum amount specified by the Agent pursuant to paragraph (b)(ii) of Clause 4.3 (Conditions relating to Optional Currencies) or, if less, the Available Facility; and

 

  (iv)

will not result in the Base Currency Amount of all outstanding Letters of Credit exceeding US$500,000,000 (or its equivalent in any other currency).

 

6.5

Issue of Letters of Credit

 

  (a)

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

 

  (b)

Subject to Clause 4.1 (Initial conditions precedent), the Issuing Bank will only be obliged to comply with paragraph (a) above in relation to a Letter of Credit other than one to which paragraph (c) below applies, if on the date of the Utilisation Request or Renewal Request and on the proposed Utilisation Date:

 

  (i)

no Default (or, in the case of a Letter of Credit to be renewed in accordance with Clause 6.6 (Renewal of a Letter of Credit), no Acceleration Event) is continuing or would result from the proposed Utilisation;

 

  (ii)

in relation to any Utilisation on the Funding Date, all the representations and warranties in Clause 29 (Representations) to be made by each Obligor are true in all material respects; and

 

  (iii)

in relation to any Utilisations other than on the Funding Date, the Repeating Representations (but excluding, in the case of a Letter of Credit to be renewed in accordance with Clause 6.6 (Renewal of a Letter of Credit), paragraph (a) of Clause 29.8 (No default)) to be made by each Obligor are true in all material respects.

 

  (c)

The amount of each Lender’s participation in each Letter of Credit will be equal to the proportion borne by its Available Commitment to the Available Facility (in each case in relation to the Revolving Facility) immediately prior to the issue of the Letter of Credit.

 

  (d)

The Agent shall determine the Base Currency Amount of each Letter of Credit which is to be issued in an Optional Currency and shall notify the Issuing Bank and each Lender of the details of the requested Letter of Credit and its participation in that Letter of Credit by the Specified Time.

 

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6.6

Renewal of a Letter of Credit

 

  (a)

A Borrower (or the Company 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 conditions set out in paragraph (g) of Clause 6.3 (Completion of a Utilisation Request for Letters of Credit) shall not apply.

 

  (c)

The terms of each renewed Letter of Credit shall be the same as those of the relevant Letter of Credit immediately prior to its renewal, except that:

 

  (i)

its amount may be less than the amount of the Letter of Credit immediately prior to its renewal; and

 

  (ii)

its Term shall start on the date which was the Expiry Date of the Letter of Credit immediately prior to its renewal, and shall end on the proposed Expiry Date specified in the Renewal Request.

 

  (d)

If the conditions set out in this Agreement have been met, the Issuing Bank shall amend and re-issue any Letter of Credit pursuant to a Renewal Request.

 

6.7

Refusal of a Letter of Credit

 

  (a)

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

 

  (i)

that Lender has failed to provide cash collateral to the Issuing Bank in accordance with Clause 7.4 (Cash collateral by Non-Acceptable L/C Lender); and

 

  (ii)

the Issuing Bank has required the relevant Borrower to provide cash cover pursuant to Clause 7.5 (Cash cover by Borrower) but the relevant Borrower has failed to provide cash cover to the Issuing Bank in accordance with Clause 7.5 (Cash cover by Borrower),

the Issuing Bank may refuse to issue that Letter of Credit.

 

6.8

Revaluation of Letters of Credit

 

  (a)

If any Letters of Credit are denominated in an Optional Currency, the Agent shall 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.

 

  (b)

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

 

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7.

LETTERS OF CREDIT

 

7.1

Immediately payable

Subject to the terms of this Agreement, if a Letter of Credit or any amount outstanding under a Letter of Credit becomes immediately payable under this Agreement, the Borrower that requested the issue of that Letter of Credit shall repay or prepay that amount immediately.

 

7.2

Claims under a Letter of Credit

 

  (a)

Each Borrower irrevocably and unconditionally authorises the Issuing Bank to pay any claim made or purported to be made under a Letter of Credit requested by it (or requested by the Company on its behalf) and which appears on its face to be in order (in this Clause 7, a claim).

 

  (b)

The Relevant Borrower shall within five Business Days of demand pay to the Agent for the Issuing Bank an amount equal to the amount of any claim.

 

  (c)

Each Borrower acknowledges that the Issuing Bank:

 

  (i)

is not obliged to carry out any investigation or seek any confirmation from any other person before paying a claim; and

 

  (ii)

deals in documents only and will not be concerned with the legality of a claim or any underlying transaction or any available set-off, counterclaim or other defence of any person.

 

  (d)

The obligations of a Borrower under this Clause 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.

 

7.3

Indemnities

 

  (a)

The Relevant Borrower shall immediately on demand indemnify the Issuing Bank against any cost, loss or liability incurred by the Issuing Bank (otherwise than by reason of the Issuing Bank’s gross negligence or wilful misconduct) in acting as the Issuing Bank under any Letter of Credit requested by (or on behalf of) that Borrower.

 

  (b)

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

 

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  (c)

If any Lender is not permitted (by its constitutional documents or any applicable law) to comply with paragraph (b) above, then that Lender will not be obliged to comply with paragraph (b) above and shall instead be deemed to have taken, on the date the Letter of Credit is issued (or if later, on the date the Lender’s participation in the Letter of Credit is transferred or assigned to the Lender in accordance with the terms of this Agreement), an undivided interest and participation in the Letter of Credit in an amount equal to its L/C Proportion of that Letter of Credit. On receipt of demand from the Agent, that Lender shall pay to the Agent (for the account of the Issuing Bank) an amount equal to its L/C Proportion of the amount demanded.

 

  (d)

The Borrower which requested (or on behalf of which the Company requested) a Letter of Credit shall immediately on demand reimburse any Lender for any payment it makes to the Issuing Bank under this Clause 7.3 in respect of that Letter of Credit.

 

  (e)

The obligations of each Lender under this Clause are continuing obligations and will extend to the ultimate balance of sums payable by that Lender in respect of any Letter of Credit, regardless of any intermediate payment or discharge in whole or in part.

 

  (f)

The obligations of any Lender or Borrower under this Clause 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 (provided that, in the case of any amendment to a Letter of Credit, the Company has agreed to such amendment) 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

 

  (a)

If, at any time, a Lender under the Revolving Facility is a Non-Acceptable L/C Lender, the Issuing Bank may, by notice to that Lender, request that Lender to pay and that Lender shall pay (or procure that one of its Affiliates pays), on or prior to the date falling five Business Days after the request by the Issuing Bank, an amount equal to that Lender’s L/C Proportion of the outstanding amount of a Letter of Credit and in the currency of that Letter of Credit to an interest-bearing account held in the name of that Lender with the Issuing Bank.

 

  (b)

The Non-Acceptable L/C Lender to whom a request has been made in accordance with paragraph (a) above shall (or, if an Affiliate is making payment in accordance with paragraph (a) above, shall procure that its Affiliate will) enter into a security document or other form of collateral arrangement over the account, in form and substance satisfactory to the Issuing Bank, as collateral for any amounts due and payable under the Finance Documents by that Lender to the Issuing Bank in respect of that Letter of Credit.

 

  (c)

Until no amount is or may be outstanding under that Letter of Credit, withdrawals from the account may only be made to pay to the Issuing Bank amounts due and payable to the Issuing Bank by the Non-Acceptable L/C Lender under the Finance Documents in respect of that Letter of Credit.

 

  (d)

Each Lender under the Revolving Facility shall notify the Agent and the Parent:

 

  (i)

on the 2021 Amendment and Restatement Date or on any later date on which it becomes such a Lender in accordance with Clause 2.2 (Increase) or Clause 33 (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 2021 Amendment and Restatement Date Parties), in a Transfer Certificate or in an Increase Confirmation to that effect will constitute a notice under paragraph (d)(i) above to the Agent and, upon delivery in accordance with Clause 33.7 (Copy of Transfer Certificate or Increase Confirmation to Company), to the Company.

 

  (e)

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

 

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  (f)

If a Lender who has (or has procured that an Affiliate has) provided cash collateral in accordance with this Clause 7.4:

 

  (i)

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

 

  (ii)

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

that Lender may, at any time it is not a Non-Acceptable L/C Lender, by notice to the Issuing Bank request that an amount equal to the amount of the cash provided by it (or its Affiliate, as applicable) as collateral in respect of that Letter of Credit (together with any accrued interest) standing to the credit of the relevant account held with the Issuing Bank be returned to it (or its Affiliate, as applicable) and the Issuing Bank shall pay that amount to the Lender (or its Affiliate, as applicable) within five Business Days after the request from the Lender (and shall cooperate with the Lender (and, to the extent applicable, its Affiliate) in order to procure that the relevant security or collateral arrangement is released and discharged).

 

7.5

Cash cover by Borrower

 

  (a)

If a Lender which is a Non-Acceptable L/C Lender fails (or its Affiliate fails) to provide cash collateral (or notifies the Issuing Bank that it will not provide cash collateral) in accordance with Clause 7.4 (Cash collateral by Non-Acceptable L/C Lender) and the Issuing Bank notifies the Obligors’ Agent (with a copy to the Agent) that it requires the Borrower of the relevant Letter of Credit or proposed Letter of Credit to provide cash cover to an account with the Issuing Bank in an amount equal to that Lender’s L/C Proportion of the outstanding amount of that Letter of Credit and in the currency of that Letter of Credit then that Borrower shall do so within five Business Days after the notice is given.

 

  (b)

Notwithstanding paragraph (d) of Clause 1.2 (Construction), the Issuing Bank may agree to the withdrawal of amounts up to the level of that cash cover from the account if:

 

  (i)

it is satisfied that the relevant Lender is no longer a Non-Acceptable L/C Lender; or

 

  (ii)

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

 

  (iii)

an Increase Lender has agreed to undertake the obligations in respect of the relevant Lender’s L/C Proportion of the Letter of Credit.

 

  (c)

To the extent that a Borrower has complied with its obligations to provide cash cover in accordance with this Clause 7.5, the relevant Lender’s L/C Proportion in respect of that Letter of Credit will remain (but that Lender’s obligations in relation to that Letter of Credit may be satisfied in accordance with paragraph (e)(ii) of Clause 1.2 (Construction)). However, the relevant Borrower’s obligation to pay any Letter of Credit fee in relation to the relevant

 

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  Letter of Credit to the Agent (for the account of that Lender) in accordance with paragraph (b) of Clause 22.5 (Fees payable in respect of Letters of Credit) will be reduced proportionately as from the date on which it complies with that obligation to provide cash cover (and for so long as the relevant amount of cash cover continues to stand as collateral).

 

  (d)

The relevant Issuing Bank shall promptly notify the Agent of the extent to which a Borrower provides cash cover pursuant to this Clause 7.5 and of any change in the amount of cash cover so provided.

 

8.

DOLLAR SWINGLINE FACILITY

 

8.1

General

 

  (a)

Clause 4.2 (Further conditions precedent) and 4.3 (Conditions relating to Optional Currencies);

 

  (b)

Clause 5 (Utilisation - Loans);

 

  (c)

Clause 14 (Optional Currencies);

 

  (d)

Clause 19 (Interest) as it applies to the calculation of interest on a Loan but not default interest on an overdue amount;

 

  (e)

Clause 20 (Interest Periods); and

 

  (f)

Clause 21 (Changes to the Calculation of Interest),

do not apply to Dollar Swingline Loans.

 

8.2

Definitions

Any references in this Agreement to:

 

  (a)

an “Interest Period” includes each period determined under this Agreement by reference to which interest on a Dollar Swingline Loan is calculated; and

 

  (b)

a “Lender” includes a Dollar Swingline Lender unless the context otherwise requires.

 

8.3

Dollar Swingline Facility

Subject to the terms of this Agreement, the Dollar Swingline Lenders make available to the Borrowers a dollar swingline loan facility in an aggregate amount equal to the Total Dollar Swingline Commitments.

 

8.4

Purpose

Each Borrower shall apply all amounts borrowed by it under the Dollar Swingline Facility towards refinancing any note or other instrument maturing under a dollar commercial paper programme of a member of the Group. A Dollar Swingline Loan may not be borrowed to refinance (in whole or in part) a maturing Euro Swingline Loan and/or Dollar Swingline Loan.

 

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9.

UTILISATION—DOLLAR SWINGLINE LOANS

 

9.1

Delivery of a Utilisation Request for Dollar Swingline Loans

 

  (a)

A Borrower may utilise the Dollar Swingline Facility by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time.

 

  (b)

Each Utilisation Request for a Dollar Swingline Loan must be sent to the Agent to the address in New York notified by the Agent for this purpose, with a copy to its address referred to in Clause 40 (Notices).

 

9.2

Completion of a Utilisation Request for Dollar Swingline Loans

 

  (a)

Each Utilisation Request for a Dollar Swingline Loan is irrevocable and will not be regarded as having been duly completed unless:

 

  (i)

it identifies the Borrower;

 

  (ii)

it specifies that it is for a Dollar Swingline Loan;

 

  (iii)

the proposed Utilisation Date is a New York Business Day within the Availability Period applicable to the Revolving Facility;

 

  (iv)

the Dollar Swingline Loan is denominated in dollars;

 

  (v)

the amount of the proposed Dollar Swingline Loan is an amount whose Base Currency Amount is not more than the Available Dollar Swingline Facility and is a minimum of US$25,000,000 or, if less, the Available Dollar Swingline Facility; and

 

  (vi)

the proposed Interest Period:

 

  (A)

does not overrun the Final Termination Date;

 

  (B)

is a period of not more than five New York Business Days; and

 

  (C)

ends on a New York Business Day.

 

  (b)

Only one Dollar Swingline Loan may be requested in each Utilisation Request.

 

9.3

Dollar Swingline Lenders’ participation

 

  (a)

If the conditions set out in this Agreement have been met, each Dollar Swingline Lender shall make its participation in each Dollar Swingline Loan available through its Facility Office.

 

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  (b)

The Dollar Swingline Lenders will only be obliged to comply with paragraph (a) above if on the date of the Utilisation Request and on the proposed Utilisation Date:

 

  (i)

no Default is continuing or would result from the proposed Utilisation; and

 

  (ii)

the Repeating Representations to be made by each Obligor are true in all material respects.

 

  (c)

The amount of each Dollar Swingline Lender’s participation in each Dollar Swingline Loan will be equal to the proportion borne by its Available Dollar Swingline Commitment to the Available Dollar Swingline Facility immediately prior to making the Dollar Swingline Loan, adjusted to take account of any limit applying under Clause 9.4 (Relationship with the Revolving Facility).

 

  (d)

The Agent shall determine the Base Currency Amount of each Dollar Swingline Loan and notify each Dollar Swingline Lender of the amount of each Dollar Swingline Loan and its participation in that Dollar Swingline Loan in each case by the Specified Time.

 

9.4

Relationship with the Revolving Facility

 

  (a)

This paragraph applies when a Dollar Swingline Loan is outstanding or is to be borrowed.

 

  (b)

The Revolving Facility may be used by way of Dollar Swingline Loans. The Dollar Swingline Facility is not independent of the Revolving Facility.

 

  (c)

Notwithstanding any other term of this Agreement a Lender is only obliged to participate in a Revolving Facility Loan or a Dollar Swingline Loan to the extent that it would not result in the Base Currency Amount of its participation (and that of a Lender which is its Affiliate) in the Revolving Facility Loans, Dollar Swingline Loans and Euro Swingline Loans exceeding its Overall Commitment.

 

  (d)

Where, but for the operation of paragraph (c) above, the Base Currency Amount of a Lender’s participation (and that of a Lender which is its Affiliate) in the Revolving Facility Loans, Dollar Swingline Loans and Euro Swingline Loans would have exceeded its Overall Commitment, the excess will be (to the extent possible without causing a similar excess for other Lenders) apportioned among the other Lenders participating in the relevant Loan pro rata according to their relevant Commitments. This calculation will be applied as often as necessary until the Loan is apportioned among the relevant Lenders in a manner consistent with paragraph (c) above.

 

9.5

Conditions of Assignment or transfer

Notwithstanding any other term of this Agreement, each Lender which has (or has an Affiliate which has) a Dollar Swingline Commitment shall ensure that at all times its Overall Commitment is not less than:

 

  (a)

its Dollar Swingline Commitment or,

 

  (b)

if it does not have a Dollar Swingline Commitment, the Dollar Swingline Commitment of a Lender which is its Affiliate.

 

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10.

DOLLAR SWINGLINE LOANS

 

10.1

Repayment of Dollar Swingline Loans

 

  (a)

Each Borrower that has drawn a Dollar Swingline Loan shall repay that Dollar Swingline Loan on the last day of its Interest Period.

 

  (b)

If a Dollar Swingline Loan is not repaid in full on its due date, the Agent shall (if requested to do so in writing by any affected Dollar Swingline Lender) set a date (the “Dollar Swingline Loss Sharing Date”) on which payments shall be made between the Lenders to re-distribute the unpaid amount between them. The Agent shall give at least three Business Days’ notice to each affected Lender of the Dollar Swingline Loss Sharing Date and notify it of the amounts to be paid or received by it.

 

  (c)

On the Dollar Swingline Loss Sharing Date each Lender must pay to the Agent its Dollar Swingline Proportion of the Dollar Swingline Unpaid Amount minus its (or its Affiliate’s) Unpaid Dollar Swingline Participation (if any). If this produces a negative figure for a Lender no amount need be paid by that Lender.

The “Dollar Swingline Proportion” of a Lender means the proportion borne by:

 

  (i)

its Revolving Facility Commitment (or, if the Total Revolving Facility Commitments are then zero, its Revolving Facility Commitment immediately prior to their reduction to zero) minus the Base Currency Amount of its participation (or that of a Lender which is its Affiliate) in any outstanding Revolving Facility Loans, Dollar Swingline Loans and Euro Swingline Loans (but ignoring its (or its Affiliate’s) participation in the unpaid Dollar Swingline Loan): to

 

  (ii)

the Total Revolving Facility Commitments (or, if the Total Revolving Facility Commitments are then zero, the Total Revolving Facility Commitments immediately prior to their reduction to zero) minus any outstanding Revolving Facility Loans, Dollar Swingline Loans and Euro Swingline Loans (but ignoring the unpaid Dollar Swingline Loan).

The “Dollar Swingline Unpaid Amount” means, in relation to a Dollar Swingline Loan, any principal not repaid and/or any interest accrued but unpaid on that Dollar Swingline Loan calculated from the Utilisation Date to the Dollar Swingline Loss Sharing Date.

The “Unpaid Dollar Swingline Participation” of a Lender means that part of the Dollar Swingline Unpaid Amount (if any) owed to that Lender (or its Affiliate) (before any re-distribution under this Clause 10.1 (Repayment of Dollar Swingline Loans)).

 

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  (d)

Out of the funds received by the Agent pursuant to paragraph (c) above the Agent shall pay to each Dollar Swingline Lender an amount equal to the Dollar Swingline Shortfall (if any) of that Dollar Swingline Lender where:

The “Dollar Swingline Shortfall” of a Dollar Swingline Lender is an amount equal to its Unpaid Dollar Swingline Participation minus its (or its Affiliate’s) Dollar Swingline Proportion of the Dollar Swingline Unpaid Amount.

 

  (e)

If the amount actually received by the Agent from the Lenders is insufficient to pay the full amount of the Dollar Swingline Shortfall of all Dollar Swingline Lenders then the amount actually received will be distributed amongst the Dollar Swingline Lenders pro rata to the Dollar Swingline Shortfall of each Dollar Swingline Lender.

 

  (f)

 

  (i)

Upon a payment under this paragraph, the paying Lender will be subrogated to the rights of the Dollar Swingline Lenders which have shared in the payment received.

 

  (ii)

If and to the extent the paying Lender is not able to rely on its rights under sub-paragraph (i) above, the relevant Borrower shall be liable to the paying Lender for a debt equal to the amount the paying Lender has paid under this paragraph.

 

  (iii)

Any payment under this paragraph does not reduce the obligations in aggregate of any Obligor.

 

10.2

Voluntary Prepayment of Dollar Swingline Loans

 

  (a)

The Borrower to which a Dollar Swingline Loan has been made may prepay at any time the whole of that Dollar Swingline Loan.

 

  (b)

Unless a contrary indication appears in this Agreement, any part of the Dollar Swingline Facility which is prepaid or repaid may be reborrowed in accordance with the terms of this Agreement.

 

10.3

Interest

 

  (a)

The rate of interest on each Dollar Swingline Loan for any day during its Interest Period is the higher of:

 

  (i)

the prime commercial lending rate in dollars announced by the Agent at the Specified Time and in force on that day; and

 

  (ii)

[***] per cent. per annum over the rate per annum determined by the Agent to be the Federal Funds Rate for that day.

 

  (b)

The Agent shall promptly notify the Dollar Swingline Lenders and the relevant Borrower of the determination of the rate of interest under paragraph (a) above.

 

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  (c)

If any day during an Interest Period is not a New York Business Day, the rate of interest on a Dollar Swingline Loan on that day will be the rate applicable to the immediately preceding New York Business Day.

 

  (d)

Each Borrower shall pay accrued interest on each Dollar Swingline Loan made to it on the last day of its Interest Period.

 

10.4

Interest Period

 

  (a)

Each Dollar Swingline Loan has one Interest Period only.

 

  (b)

The Interest Period for a Dollar Swingline Loan must be selected in the relevant Utilisation Request.

 

10.5

Dollar Swingline Agent

 

  (a)

The Agent may perform its duties in respect of the Dollar Swingline Facility through an Affiliate acting as its agent.

 

  (b)

Notwithstanding any other term of this Agreement and without limiting the liability of any Obligor under the Finance Documents, each Lender shall (in proportion to its share of the Total Revolving Facility Commitments or, if the Total Revolving Facility Commitments are then zero, to its share of the Total Revolving Facility Commitments immediately prior to their reduction to zero) pay to or indemnify the Agent, within three Business Days of demand, for or against any cost, loss or liability incurred by the Agent or its Affiliate (other than by reason of the Agent’s or the Affiliate’s gross negligence or wilful misconduct) in acting as Agent for the Dollar Swingline Facility under the Finance Documents (unless the Agent or its Affiliate has been reimbursed by an Obligor pursuant to a Finance Document).

 

11.

EURO SWINGLINE FACILITY

 

11.1

General

 

  (a)

Clause 4.2 (Further conditions precedent) and 4.3 (Conditions relating to Optional Currencies);

 

  (b)

Clause 5 (Utilisation - Loans);

 

  (c)

Clause 14 (Optional Currencies);

 

  (d)

Clause 19 (Interest) as it applies to the calculation of interest on a Loan but not default interest on an overdue amount;

 

  (e)

Clause 20 (Interest Periods); and

 

  (f)

Clause 21 (Changes to the Calculation of Interest),

do not apply to Euro Swingline Loans.

 

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11.2

Definitions

Any references in this Agreement to:

 

  (a)

an “Interest Period” includes each period determined under this Agreement by reference to which interest on a Euro Swingline Loan is calculated; and

 

  (b)

a “Lender” includes a Euro Swingline Lender unless the context otherwise requires.

 

11.3

Euro Swingline Facility

Subject to the terms of this Agreement, the Euro Swingline Lenders make available to the Borrowers a euro swingline loan facility in an aggregate amount equal to the Total Euro Swingline Commitments.

 

11.4

Purpose

Each Borrower shall apply all amounts borrowed by it under the Euro Swingline Facility towards refinancing any note or other instrument maturing under a euro commercial paper programme of a member of the Group. A Euro Swingline Loan may not be borrowed to refinance (in whole or in part) a maturing Euro Swingline Loan and/or Dollar Swingline Loan.

 

12.

UTILISATION—EURO SWINGLINE LOANS

 

12.1

Delivery of a Utilisation Request for Euro Swingline Loans

 

  (a)

A Borrower may utilise the Euro Swingline Facility by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time.

 

  (b)

Each Utilisation Request for a Euro Swingline Loan must be sent to the Agent.

 

12.2

Completion of a Utilisation Request for Euro Swingline Loans

 

  (a)

Each Utilisation Request for a Euro Swingline Loan is irrevocable and will not be regarded as having been duly completed unless:

 

  (i)

it identifies the Borrower;

 

  (ii)

it specifies that it is for a Euro Swingline Loan;

 

  (iii)

the proposed Utilisation Date is a Euro Swingline Business Day within the Availability Period applicable to the Revolving Facility;

 

  (iv)

the Euro Swingline Loan is denominated in euro;

 

  (v)

the amount of the proposed Euro Swingline Loan is an amount whose Base Currency Amount is not more than the Available Euro Swingline Facility and is a minimum of €25,000,000 or, if less, the Available Euro Swingline Facility; and

 

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  (vi)

the proposed Interest Period:

 

  (A)

does not overrun the Final Termination Date;

 

  (B)

is a period of not more than five Business Days; and

 

  (C)

ends on a Business Day.

 

  (b)

Only one Euro Swingline Loan may be requested in each Utilisation Request.

 

12.3

Euro Swingline Lenders’ participation

 

  (a)

If the conditions set out in this Agreement have been met, each Euro Swingline Lender shall make its participation in each Euro Swingline Loan available through its Facility Office.

 

  (b)

The Euro Swingline Lenders will only be obliged to comply with paragraph (a) above if on the date of the Utilisation Request and on the proposed Utilisation Date:

 

  (i)

no Default is continuing or would result from the proposed Utilisation; and

 

  (ii)

the Repeating Representations to be made by each Obligor are true in all material respects.

 

  (c)

The amount of each Euro Swingline Lender’s participation in each Euro Swingline Loan will be equal to the proportion borne by its Available Euro Swingline Commitment to the Available Euro Swingline Facility immediately prior to making the Euro Swingline Loan, adjusted to take account of any limit applying under Clause 12.4 (Relationship with the Revolving Facility).

 

  (d)

The Agent shall determine the Base Currency Amount of each Euro Swingline Loan and notify each Euro Swingline Lender of the amount of each Euro Swingline Loan and its participation in that Euro Swingline Loan in each case by the Specified Time.

 

12.4

Relationship with the Revolving Facility

 

  (a)

This paragraph applies when a Euro Swingline Loan is outstanding or is to be borrowed.

 

  (b)

The Revolving Facility may be used by way of Euro Swingline Loans. The Euro Swingline Facility is not independent of the Revolving Facility.

 

  (c)

Notwithstanding any other term of this Agreement a Lender is only obliged to participate in a Revolving Facility Loan or a Euro Swingline Loan to the extent that it would not result in the Base Currency Amount of its participation (and that of a Lender which is its Affiliate) in the Revolving Facility Loans, Dollar Swingline Loans and Euro Swingline Loans exceeding its Overall Commitment.

 

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  (d)

Where, but for the operation of paragraph (c) above, the Base Currency Amount of a Lender’s participation (and that of a Lender which is its Affiliate) in the Revolving Facility Loans, Dollar Swingline Loans and Euro Swingline Loans would have exceeded its Overall Commitment, the excess will be (to the extent possible without causing a similar excess for other Lenders) apportioned among the other Lenders participating in the relevant Loan pro rata according to their relevant Commitments. This calculation will be applied as often as necessary until the Loan is apportioned among the relevant Lenders in a manner consistent with paragraph (c) above.

 

12.5

Conditions of Assignment or transfer

Notwithstanding any other term of this Agreement, each Lender which has (or an Affiliate which has) a Euro Swingline Commitment shall ensure that at all times its Overall Commitment is not less than:

 

  (a)

its Euro Swingline Commitment or,

 

  (b)

if it does not have a Euro Swingline Commitment, the Euro Swingline Commitment of a Lender which is its Affiliate.

 

13.

EURO SWINGLINE LOANS

 

13.1

Repayment of Euro Swingline Loans

 

  (a)

Each Borrower that has drawn a Euro Swingline Loan shall repay that Euro Swingline Loan on the last day of its Interest Period.

 

  (b)

If a Euro Swingline Loan is not repaid in full on its due date, the Agent shall (if requested to do so in writing by any affected Euro Swingline Lender) set a date (the “Euro Swingline Loss Sharing Date”) on which payments shall be made between the Lenders to re-distribute the unpaid amount between them. The Agent shall give at least three Business Days’ notice to each affected Lender of the Euro Swingline Loss Sharing Date and notify it of the amounts to be paid or received by it.

 

  (c)

On the Euro Swingline Loss Sharing Date each Lender must pay to the Agent its Euro Swingline Proportion of the Euro Swingline Unpaid Amount minus its (or its Affiliate’s) Unpaid Euro Swingline Participation (if any). If this produces a negative figure for a Lender no amount need be paid by that Lender.

The “Euro Swingline Proportion” of a Lender means the proportion borne by:

 

  (i)

its Revolving Facility Commitment (or, if the Total Revolving Facility Commitments are then zero, its Revolving Facility Commitment immediately prior to their reduction to zero) minus the Base Currency Amount of its participation (or that of a Lender which is its Affiliate) in any outstanding Revolving Facility Loans, Dollar Swingline Loans and Euro Swingline Loans (but ignoring its (or its Affiliate’s) participation in the unpaid Euro Swingline Loan): to

 

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  (ii)

the Total Revolving Facility Commitments (or, if the Total Revolving Facility Commitments are then zero, the Total Revolving Facility Commitments immediately prior to their reduction to zero) minus any outstanding Revolving Facility Loans, Dollar Swingline Loans and Euro Swingline Loans (but ignoring the unpaid Euro Swingline Loan).

The “Euro Swingline Unpaid Amount” means, in relation to a Euro Swingline Loan, any principal not repaid and/or any interest accrued but unpaid on that Euro Swingline Loan calculated from the Utilisation Date to the Euro Swingline Loss Sharing Date.

The “Unpaid Euro Swingline Participation” of a Lender means that part of the Euro Swingline Unpaid Amount (if any) owed to that Lender (or its Affiliate) (before any re-distribution under this Clause 13.1 (Repayment of Euro Swingline Loans)).

 

  (d)

Out of the funds received by the Agent pursuant to paragraph (c) above the Agent shall pay to each Euro Swingline Lender an amount equal to the Euro Swingline Shortfall (if any) of that Euro Swingline Lender where:

The “Euro Swingline Shortfall” of a Euro Swingline Lender is an amount equal to its Unpaid Euro Swingline Participation minus its (or its Affiliate’s) Euro Swingline Proportion of the Euro Swingline Unpaid Amount.

 

  (e)

If the amount actually received by the Agent from the Lenders is insufficient to pay the full amount of the Euro Swingline Shortfall of all Euro Swingline Lenders then the amount actually received will be distributed amongst the Euro Swingline Lenders pro rata to the Euro Swingline Shortfall of each Euro Swingline Lender.

 

  (f)

 

  (i)

Upon a payment under this paragraph, the paying Lender will be subrogated to the rights of the Euro Swingline Lenders which have shared in the payment received.

 

  (ii)

If and to the extent the paying Lender is not able to rely on its rights under sub-paragraph (i) above, the relevant Borrower shall be liable to the paying Lender for a debt equal to the amount the paying Lender has paid under this paragraph.

 

  (iii)

Any payment under this paragraph does not reduce the obligations in aggregate of any Obligor.

 

13.2

Voluntary Prepayment of Euro Swingline Loans

 

  (a)

The Borrower to which a Euro Swingline Loan has been made may prepay at any time the whole of that Euro Swingline Loan.

 

  (b)

Unless a contrary indication appears in this Agreement, any part of the Euro Swingline Facility which is prepaid or repaid may be reborrowed in accordance with the terms of this Agreement.

 

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13.3

Interest on Euro Swingline Loans

 

  (a)

The rate of interest on each Euro Swingline Loan for any day during its Interest Period is the percentage rate per annum which is the aggregate of:

 

  (i)

the Margin (as applicable to a Revolving Facility Utilisation); and

 

  (ii)

Enhanced €STR.

 

  (b)

The Agent shall promptly notify the Euro Swingline Lenders and the relevant Borrower of the determination of the rate of interest under paragraph (a) above.

 

  (c)

The Agent shall promptly notify the relevant Borrower of each Funding Rate relating to a Euro Swingline Loan.

 

  (d)

If any day during an Interest Period is not a Business Day, the rate of interest on a Euro Swingline Loan on that day will be the rate applicable to the immediately preceding Business Day.

 

  (e)

Each Borrower shall pay accrued interest on each Euro Swingline Loan made to it on the day which falls three Euro Swingline Business Days after the last day of its Interest Period.

 

13.4

Unavailability of Screen Rate – Euro Swingline Facility

 

  (a)

If no Screen Rate is available for €STR for any day the applicable €STR for that day shall be the most recent applicable Screen Rate which is as of a day which is no more than one day before that day.

 

  (b)

If paragraph (a) above applies and there is no applicable Screen Rate which is as of a day which is no more than one day before that day the applicable €STR for that day shall be the Reference Bank Rate for that day.

 

  (c)

If paragraph (b) above applies but no Reference Bank Rate is available for that day there shall be no Enhanced €STR for that day and Clause 13.6 (Cost of funds – Euro Swingline Facility) shall apply.

 

13.5

Calculation of Reference Bank Rate – Euro Swingline Facility

 

  (a)

Subject to paragraph (b) below, if €STR is to be determined on the basis of a Reference Bank Rate for a day but a Reference Bank does not supply a quotation by 11.30 a.m. (Brussels time) on the Euro Swingline Business Day which immediately follows that day, 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 Euro Swingline Business Day which immediately follows that day none or only one of the Reference Banks supplies a quotation, there shall be no Reference Bank Rate for that day.

 

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13.6

Cost of funds – Euro Swingline Facility

 

  (a)

If this Clause 13.6 applies, the rate of interest on the relevant Euro Swingline Loan for the relevant day shall be the percentage rate per annum which is the sum of:

 

  (i)

the Margin (as applicable to a Revolving Facility Utilisation); and

 

  (ii)

the weighted average of the rates notified to the Agent by each Euro Swingline Lender as soon as practicable, and in any event before interest is due to be paid in respect of that Euro Swingline Loan, to be that which expresses as a percentage rate per annum the cost to the relevant Euro Swingline Lender of funding its participation in that Euro Swingline Loan for that day from whatever source it may reasonably select.

 

  (b)

If this Clause 13.6 applies but any Euro Swingline Lender does not supply a quotation by the time specified in paragraph (a) above the rate of interest shall be calculated on the basis of the quotations of the remaining Euro Swingline Lenders. For the avoidance of doubt (but without prejudice to the rest of this Clause 13.6), no Lender will be under an obligation to supply a quotation.

 

13.7

Interest Period

 

  (a)

Each Euro Swingline Loan has one Interest Period only.

 

  (b)

The Interest Period for a Euro Swingline Loan must be selected in the relevant Utilisation Request.

 

13.8

Euro Swingline Agent

 

  (a)

The Agent may perform its duties in respect of the Euro Swingline Facility through an Affiliate acting as its agent.

 

  (b)

Notwithstanding any other term of this Agreement and without limiting the liability of any Obligor under the Finance Documents, each Lender shall (in proportion to its share of the Total Revolving Facility Commitments or, if the Total Revolving Facility Commitments are then zero, to its share of the Total Revolving Facility Commitments immediately prior to their reduction to zero) pay to or indemnify the Agent, within three Business Days of demand, for or against any cost, loss or liability incurred by the Agent or its Affiliate (other than by reason of the Agent’s or the Affiliate’s gross negligence or wilful misconduct) in acting as Agent for the Euro Swingline Facility under the Finance Documents (unless the Agent or its Affiliate has been reimbursed by an Obligor pursuant to a Finance Document).

 

13.9

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 13.

 

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14.

OPTIONAL CURRENCIES

 

14.1

Selection of currency

The Relevant Borrower (or the Company on its behalf) shall select the currency of a Revolving Facility Utilisation in a Utilisation Request.

 

14.2

Unavailability of a currency

If before the Specified Time:

 

  (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 to that effect by the Specified Time. In this event, any Lender that gives notice pursuant to this Clause 14.2 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.

 

14.3

Agent’s calculations

Each Lender’s participation in a Loan will be determined in accordance with paragraph (b) of Clause 5.4 (Lenders’ participation).

 

15.

REPAYMENT

 

  (a)

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

 

  (b)

Without prejudice to the Relevant Borrower’s obligation under paragraph (a) above, if one or more Revolving Facility Loans are to be made available to a Borrower:

 

  (i)

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

 

  (ii)

in the same currency as the maturing Revolving Facility Loan (unless it arose as a result of the operation of Clause 14.2 (Unavailability of a currency)); and

 

  (iii)

in whole or in part for the purpose of refinancing the maturing Revolving Facility Loan,

 

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the Agent will apply the new Revolving Facility Loans in or towards repayment of the maturing Revolving Facility Loan so that:

 

  (A)

if the amount of the maturing Revolving Facility Loan exceeds the aggregate amount of the new Revolving Facility Loans:

 

  (1)

the Relevant Borrower will only be required to pay an amount in cash in the relevant currency equal to that excess; and

 

  (2)

each Lender’s participation (if any) in the new Revolving Facility Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender’s participation (if any) in the maturing Revolving Facility Loan and that Lender will not be required to make its participation in the new Revolving Facility Loans available in cash; and

 

  (B)

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

 

  (1)

the Relevant Borrower will not be required to make any payment in cash; and

 

  (2)

each Lender will be required to make its participation in the new Revolving Facility Loans available in cash only to the extent that its participation (if any) in the new Revolving Facility Loans exceeds that Lender’s participation (if any) in the maturing Revolving Facility Loan and the remainder of that Lender’s participation in the new Revolving Facility 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 Revolving Facility Loan.

 

  (c)

At any time a Lender becomes a Defaulting Lender, the maturity date of each of the participations of that Lender in the Revolving Facility Loans then outstanding will be automatically extended to the Final Termination Date 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 three Business Days’ prior written 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 Defaulting Lender on the last day of each Interest Period of that Loan.

 

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  (f)

The terms of this Agreement relating to Revolving Facility 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.

 

16.

ILLEGALITY, VOLUNTARY PREPAYMENT AND CANCELLATION

 

16.1

Illegality

If, in any applicable jurisdiction, it becomes unlawful for any Lender to perform any of its obligations as contemplated by this Agreement or to fund, issue or maintain its participation in any Utilisation:

 

  (a)

that Lender shall promptly notify the Agent upon becoming aware of that event;

 

  (b)

upon the Agent notifying the Company of such notice, that Lender shall be immediately released from its obligations to participate in any Utilisations; and

 

  (c)

by written notice to the Agent, that Lender may:

 

  (i)

cancel its Commitment, and such Commitment shall be immediately cancelled upon the Agent notifying the Company of such notice; and/or

 

  (ii)

require prepayment of its participation in the Utilisations, and

the Relevant 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 Company 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).

 

16.2

Illegality in relation to Issuing Bank

If it becomes unlawful for an Issuing Bank to issue or leave outstanding any Letter of Credit, then:

 

  (a)

that Issuing Bank shall promptly notify the Agent upon becoming aware of that event;

 

  (b)

upon the Agent notifying the Company, the Issuing Bank shall not be obliged to issue any Letter of Credit; and

 

  (c)

the Company shall procure that the Relevant Borrower shall use all reasonable endeavours to procure the release of each Letter of Credit issued by that Issuing Bank and outstanding at such time.

 

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16.3

Voluntary cancellation

 

  (a)

The Relevant Borrower may, if it gives the Agent not less than three Business Days (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of US$10,000,000) of an Available Facility. Any cancellation under this Clause 16.3 shall reduce the Commitments of the Lenders rateably under that Facility.

 

  (b)

Without prejudice to Clauses 9.5 (Conditions of Assignment or transfer) and 12.5 (Conditions of Assignment or transfer) but otherwise notwithstanding any other provision of this Agreement, if the Revolving Facility Commitment of a Lender which has (or has an Affiliate which has) a Dollar Swingline Commitment or Euro Swingline Commitment (such Lender, a “Swingline Lender”) would otherwise be reduced to an amount which is exceeded by the aggregate of that Swingline Lender’s Dollar Swingline Commitment and Euro Swingline Commitment, there will be an automatic cancellation of that Swingline Lender’s Dollar Swingline Commitment and/or Euro Swingline Commitment to the extent required to reduce that excess to zero. For these purposes (i) the Euro Swingline Commitment of a Swingline Lender shall be notionally converted into the Base Currency on the date of the relevant reduction of Revolving Facility Commitments at the Agent’s Spot Rate of Exchange on that date and (ii) if a reduction of a Swingline Lender’s Dollar Swingline Commitments and Euro Swingline Commitments is required as a result of the operation of this paragraph (b), such reduction shall be applied pro rata to the respective amounts of the Dollar Swingline Commitments and Euro Swingline Commitments of the relevant Swingline Lender (notionally converting into the Base Currency any Euro Swingline Commitments in accordance with sub-paragraph (i) above).

 

16.4

Voluntary prepayment of Revolving Facility Utilisations

 

  (a)

A Borrower to which a Revolving Facility Utilisation has been made may, if it or the Company gives the Agent not less than three Business Days (or such shorter period as the Majority Lenders may agree) prior notice prepay the whole or any part of a Term Rate Loan or a Letter of Credit (but if in part, being an amount that reduces the Base Currency Amount of the Revolving Facility Utilisation by a minimum amount of US$25,000,000).

 

  (b)

On no more than three occasions (in total in respect of all Borrowers) in each financial year, a Borrower to which a Compounded Rate Loan has been made may, if it or the Company gives the Agent not less than six RFR Banking Days (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of a Compounded Rate Loan (but if in part, being an amount that reduces the Base Currency Amount of the Revolving Facility Utilisation by a minimum amount of US$25,000,000).

 

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16.5

Right of replacement or repayment and cancellation in relation to a single Lender or Issuing Bank

 

  (a)

If

 

  (i)

any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 23.2 (Tax gross-up);

 

  (ii)

any Lender or Issuing Bank claims indemnification from the Company or an Obligor under Clause 23.3 (Tax indemnity) or Clause 24.1 (Increased costs); or

 

  (iii)

any Lender gives notice to the Agent under Clause 21.3 (Market disruption),

the Relevant Borrower 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 of any Affiliate of that Lender which is a Dollar Swingline Lender or a Euro Swingline Lender and its intention to procure the repayment of that Lender’s and any such Affiliate’s participation in the Utilisations or of its intention to replace that Lender (together with any Affiliate of that Lender) in accordance with Clause 44.4 (Replacement of Lender); or

 

  (B)

(if such circumstances relate to the Issuing Bank) of repayment of any outstanding Letter of Credit issued by it and cancellation of its appointment as an Issuing 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 Available Commitment in relation to the Revolving Facility of that Lender and the Available Euro Swingline Commitment and the Available Dollar Swingline Commitment of any such Affiliate shall be immediately reduced to zero.

 

  (c)

On the last day of each Interest Period which ends after the Company has given notice under paragraph (a) above in relation to a Lender (or, if earlier, the date specified by the Company in that notice), the Relevant Borrower to which a Utilisation is outstanding shall repay that Lender’s participation in that Utilisation and that Lender’s corresponding Commitment(s) shall be immediately cancelled in the amount of the participations repaid.

 

16.6

Right of cancellation in relation to a Defaulting Lender

 

  (a)

If any Lender becomes a Defaulting Lender, the Company may, at any time whilst the Lender continues to be a Defaulting Lender, give the Agent notice of cancellation of each Available Commitment of that Lender.

 

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  (b)

On receipt of a notice referred to in paragraph (a) above, 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.

 

16.7

Application of prepayments

Any prepayment of a Loan pursuant to Clause 16.4 (Voluntary prepayment of Revolving Facility Utilisations) shall be applied pro rata to each Lender’s participation in that Loan.

 

17.

MANDATORY PREPAYMENT

Upon:

 

  (a)

the occurrence of a Change of Control; or

 

  (b)

a Sale:

 

  (i)

the Company shall notify the Agent upon becoming aware of such Change of Control or Sale;

 

  (ii)

after such notice, a Lender shall not be obliged to fund any Utilisation (other than a Rollover Loan);

 

  (iii)

any Lender may, by not less than thirty (30) days’ written notice to the Agent, cancel its Available Commitment and require repayment of its participation in the Utilisations, together with accrued interest thereon and all other amounts owed to it under the Finance Documents; and

 

  (iv)

the Company shall procure that the Relevant Borrower repay any Lender which delivers a notice to the Agent pursuant to paragraph (iii) above on the date falling thirty (30) days after receipt by the Agent of such notice,

provided that paragraphs (ii), (iii) and (iv) above shall only become effective with respect to a Change of Control, if the Shareholders’ Approval has been obtained and an extract of the resolution containing the Shareholders’ Approval has been duly filed with the clerk of the relevant enterprise court in accordance with article 7:151 of the Belgian Companies and Associations Code.

 

18.

RESTRICTIONS

 

18.1

Notices of Cancellation or Prepayment

Any notice of cancellation or prepayment given by any Party under Clause 16 (Illegality, Voluntary Prepayment and Cancellation) shall (subject to the terms thereof) be irrevocable and, unless a contrary indication appears in this Agreement, any such notice 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.

 

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18.2

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.

 

18.3

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.

 

18.4

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.

 

18.5

No reinstatement of Commitments

Subject to Clause 2.2 (Increase), no amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

 

18.6

Agent’s receipt of Notices

If the Agent receives a notice under Clause 16 (Illegality, Voluntary Prepayment and Cancellation), it shall promptly forward a copy of that notice or election to either the Company or the affected Lender, as appropriate.

 

19A.

RATE SWITCH

 

19A.1

Switch to Compounded Reference Rate

Subject to Clause 19A.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 applicable Term Reference Rate for the calculation of interest for Revolving Facility Loans in that Rate Switch Currency; and

 

  (b)

any Revolving Facility Loan or Unpaid Sum in that Rate Switch Currency shall be a “Compounded Rate Loan” and Clause 19.2 (Calculation of interest – Compounded Rate Loans) shall apply to each such Revolving Facility Loan or Unpaid Sum.

 

19A.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 19.1 (Calculation of interest – Term Rate Loans) shall continue to apply to that Loan for that Interest Period;

 

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  (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 19.2 (Calculation of interest – Compounded Rate Loans) shall apply to that Loan.

 

19A.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:

 

  (i)

that occurrence; and

 

  (ii)

the Credit Adjustment Spread for each Relevant Tenor and each Rate Switch Currency.

 

19.

INTEREST

 

19.1

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.

 

19.2

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.

 

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  (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.

 

19.3

Margin

 

  (a)

Subject to Clause 19.4 (Calculation of Margin – Sustainability Discount and Sustainability Premium) and paragraph (c) of Clause 31.12 (Shareholders’ Approval – the Company), the Margin is:

 

  (i)

in relation to any Revolving Facility Utilisation, the rate determined in accordance with the margin grid set out below, as calculated by reference to the Company’s Credit Rating, as assessed by S&P and by Moody’s. Accordingly, the rate applicable as of the 2021 Amendment and Restatement Date, based on the Company’s Credit Rating at such date, is [***] per cent. per annum;

 

  (ii)

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

 

  (iii)

in relation to any other Unpaid Sum, the highest rate specified below:

 

Credit Rating (S&P/Moody’s)    Margin
(% p.a.)
Higher than or equal to A+/A1    [***]
A/A2    [***]
A-/A3    [***]
BBB+/Baa1    [***]
BBB/Baa2    [***]
BBB-/Baa3    [***]
Lower than BBB-/Baa3    [***]

and provided that:

 

  (i)

in the event of a split Credit Rating, the average of the two corresponding Margins shall apply; and

 

  (ii)

any change in the Margin for a Revolving Facility Utilisation pursuant to the grid above shall take effect on the first day of the next Interest Period for that Utilisation which starts following the date on which the relevant Credit Rating changed.

 

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19.4

Calculation of Margin – Sustainability Discount and Sustainability Premium

 

  (a)

The Margin shall be determined in accordance with Clause 19.3 (Margin) above (the “Base Margin”) and shall be subject to variation after the date of delivery of the first Sustainability Compliance Certificate, by reference to the most recently delivered Sustainability Compliance Certificate, as follows:

 

  (i)

if four of the Sustainability Performance Targets are met, the Base Margin shall be reduced by [***] per cent. (“[***]% Sustainability Discount”);

 

  (ii)

if three of the Sustainability Performance Targets are met, the Base Margin shall be reduced by [***] per cent. (“[***]% Sustainability Discount”);

 

  (iii)

if two of the Sustainability Performance Targets are met, the Base Margin shall be reduced by [***] per cent. (“[***]% Sustainability Discount”);

 

  (iv)

if only one Sustainability Performance Target is met, the Base Margin shall apply and there shall be no Sustainability Discount or Sustainability Premium; and

 

  (v)

if none of the Sustainability Performance Targets are met, the Base Margin shall be increased by [***] per cent. (the “Sustainability Premium”).

 

  (b)

In the event the Company breaches its obligation to deliver the Sustainability Compliance Certificate or the Annual Report to the Agent in accordance with Clause 19.6 (Sustainability Compliance Certificate), any Sustainability Discount then in force shall cease to apply and the Base Margin shall be increased by the Sustainability Premium, in each case with effect from the later of (a) the date falling 120 days after the end of the relevant financial year and (b) the date on which the Agent notifies the Company of such breach provided that:

 

  (i)

the Sustainability Premium imposed pursuant to this paragraph (b) shall cease to apply from the date on which the Company provides to the Agent (at the expense of the Company) the relevant Sustainability Compliance Certificate in accordance with Clause 19.6 (Sustainability Compliance Certificate) confirming compliance with the Sustainability Performance Targets; and

 

  (ii)

if by reference to such provided documents the Margin is subject to variation in accordance with paragraph (a) above, such variation shall take effect on the date which is five Business Days after receipt by the Agent of the Sustainability Compliance Certificate.

 

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  (c)

If the representation set out in Clause 19.5 (Sustainability representation) is or proves to have been incorrect or misleading when made (the “Misrepresentation”), the Company shall notify the Agent of such Misrepresentation promptly upon becoming aware of its occurrence and provide to the Agent as soon as reasonably practicable a revised Sustainability Compliance Certificate for the same financial year as the initial Sustainability Compliance Certificate and otherwise in accordance with Clause 19.6 (Sustainability Compliance Certificate) or any other information reasonably requested by the Agent (such request to contain sufficient detail to be capable of response) in each case (x) correcting any inaccuracies giving rise to the relevant Misrepresentation and (y) confirming whether or not the Sustainability Performance Targets are met provided that if by reference to such provided documents or information:

 

  (i)

a higher Margin should have applied during a certain period, then the Relevant Borrower shall promptly pay to the Agent any amounts necessary to put the Lenders in the position they would have been in had the appropriate rate of the Margin applied during such period; or

 

  (ii)

a lower Margin should have applied during a certain period, then the next payments of interest and/or fees falling due shall be reduced to the extent necessary to put the Relevant Borrower in the position it would have been in had the appropriate rate of the Margin applied during such period.

 

  (d)

Any increase or decrease in the Base Margin in accordance with paragraph (a) above shall take effect on the date which is five Business Days after receipt by the Agent of the Sustainability Compliance Certificate for the relevant financial year pursuant to Clause 19.6 (Sustainability Compliance Certificate).

 

  (e)

For the avoidance of doubt, any change to the KPIs and/or Sustainability Performance Targets in accordance with Clause 19.7 (Changes to the Greenhouse Gas Protocol) shall not affect the calculation of the Margin for any historic Interest Period and there shall be no requirement for any party to repay or rebate any historic payment of Interest.

 

19.5

Sustainability representation

 

  (a)

Each Obligor represents that any calculations pertaining to the KPIs or the Sustainability Performance Targets in the Annual Report or in any Sustainability Compliance Certificate have been arrived at after careful consideration and have been based on reasonable and appropriate calculation methods and assumptions.

 

  (b)

Any breach of representation or warranty with respect to any Sustainability Compliance Certificate or otherwise under this Agreement in relation to any Sustainability Compliance Certificate, the Annual Report or any other document insofar that it relates to any information, reporting or calculation provided or made in relation to the KPIs or the Sustainability Performance Targets, shall not constitute a Default or an Event of Default, but the Margin shall be subject to adjustment in accordance with the provisions of paragraph (c) of Clause 19.4 (Calculation of Margin – Sustainability Discount and Sustainability Premium).

 

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19.6

Sustainability Compliance Certificate

 

  (a)

The Company shall supply to the Agent with each Annual Report delivered pursuant to paragraph (a) of Clause 30.1 (Financial statements) and commencing with the Annual Report in respect of the financial year of the Company ending 31 December 2021, a Sustainability Compliance Certificate setting out confirmations from the Company as to compliance with the Sustainability Performance Targets as at the date as at which that Annual Report was drawn up.

 

  (b)

Each Annual Report delivered by the Company shall include, or be accompanied by, a limited assurance report from the Sustainability Report Assurer.

 

  (c)

The information set out in any Sustainability Compliance Certificate shall be based on the information set out in the Annual Report for the relevant financial year.

 

  (d)

For the avoidance of doubt, the Company shall not have any obligation to re-calculate any information set out in any historic Sustainability Compliance Certificate in the event of any changes to the sustainability-linked terms of this Agreement in accordance with Clause 19.7 (Changes to the Greenhouse Gas Protocol).

 

  (e)

Each Sustainability Compliance Certificate shall be signed by two authorised signatories of the Company.

 

  (f)

No Default or Event of Default shall occur solely by reason of a failure to comply with this Clause 19.6 or by reason of a failure to meet one or more of the Sustainability Performance Targets.

 

19.7

Changes to the Greenhouse Gas Protocol

 

  (a)

If the Company or the Majority Lenders (each acting reasonably) determines that:

 

  (i)

there have been any substantive changes to the methodology or standards set out in the Greenhouse Gas Protocol or the application of the same by the Company due to internal policies or wider industry standards; or

 

  (ii)

any change has been made to the Greenhouse Gas Protocol or the application of the same by the Company due to internal policies or wider industry standards that has any substantive effect on:

 

  (A)

GHG Emissions KPI;

 

  (B)

the calculation of the GHG Emissions Target in the Company’s Annual Report for the Baseline Year; or

 

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  (C)

the calculation of the GHG Emissions Target by the Company in any financial year after the 2021 Amendment and Restatement Date,

(the “GHG Protocol Amendments”), the Parties agree that they shall promptly and in good faith enter into discussions for a period of 90 days in order to agree any changes required to the GHG Emissions KPI and the GHG Emissions Target so that the GHG Emission Target is comparable (including, but not limited to, the calculation and level of such target) to that existing as at the 2021 Amendment and Restatement Date.

 

  (b)

If within the 90 day period referenced in paragraph (a) above, the Company and the Majority Lenders agree changes to the GHG Emissions KPI and/or the GHG Emissions Target, such changes shall be binding on all Parties.

 

  (c)

If by the end of the 90 day period referenced in paragraph (a) above, no agreement has been reached regarding the changes required to the GHG Emissions KPI and the GHG Emissions Target:

 

  (i)

the GHG Emissions Target shall cease to apply for the purpose of Clause 19.4 (Calculation of Margin – Sustainability Discount and Sustainability Premium); and

 

  (ii)

the Sustainability Premium will be [***] per cent.

 

19.8

Payment of interest

The Relevant Borrower 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).

 

19.9

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 one 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 19.9 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

 

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  (ii)

the rate of interest applying to the overdue amount during that first Interest Period shall be one 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.

 

19.10

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.

 

  (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 each applicable rate of interest relating to the determination of that Compounded Rate Interest Payment.

 

  (c)

The Agent shall promptly notify the relevant Borrower of each Funding Rate relating to a Loan.

 

  (d)

This Clause 19.10 shall not require the Agent to make any notification to any Party on a day which is not a Business Day.

 

20.

INTEREST PERIODS

 

20.1

Selection of Interest Periods and Terms

 

  (a)

The Relevant Borrower (or the Company on behalf of a Borrower) may select an Interest Period for a Loan in the Utilisation Request for that Loan.

 

  (b)

Subject to this Clause 20, a Borrower (or the Company) may select an Interest Period of one week, one Month, two, three or six Months or any other period agreed between the Company and the Agent (acting on the instructions of all the Lenders).

 

  (c)

An Interest Period for a Loan shall not extend beyond the Final Termination Date.

 

  (d)

A Revolving Facility Loan has one Interest Period only.

 

  (e)

No Interest Period for a Compounded Rate Loan shall be longer than six Months unless the Company and the Agent (acting on the instructions of all of the Lenders) agree otherwise.

 

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20.2

Non-Business Days

 

  (a)

Other than where paragraph (b) below applies, if an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).

 

  (b)

If the Loan or Unpaid Sum is a Compounded Rate Loan and there are rules specified as “Business Day Conventions” for the currency of that Loan or Unpaid Sum in the applicable Compounded Rate Terms, those rules shall apply to each Interest Period for that Loan or Unpaid Sum.

 

21.

CHANGES TO THE CALCULATION OF INTEREST

 

21.1

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 Term Rate Loan, the applicable LIBOR or EURIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of that Term Rate Loan.

 

  (b)

Shortened Interest Period: If no Screen Rate is available for LIBOR or, if applicable, EURIBOR, for:

 

  (i)

the currency of a Term Rate Loan; or

 

  (ii)

the Interest Period of a Term Rate Loan and it is not possible to calculate the Interpolated Screen Rate,

the Interest Period of that Term Rate Loan shall (if it is longer than the applicable Fallback Interest Period) be shortened to the applicable Fallback Interest Period and the applicable LIBOR or EURIBOR for that shortened Interest Period shall be determined pursuant to the relevant definition.

 

  (c)

Shortened Interest Period and Historic Screen Rate: If the Interest Period of a Term Rate Loan is, after giving effect to paragraph (b) above, either the applicable Fallback Interest Period or shorter than the applicable Fallback Interest Period and, in either case, no Screen Rate is available for LIBOR or, if applicable EURIBOR, for:

 

  (i)

the currency of that Term Rate Loan; or

 

  (ii)

the Interest Period of that Term Rate Loan and it is not possible to calculate the Interpolated Screen Rate,

the applicable LIBOR or EURIBOR shall be the Historic Screen Rate for that Term Rate Loan.

 

  (d)

Shortened Interest Period and Interpolated Historic Screen Rate: If paragraph (c) above applies but no Historic Screen Rate is available for the Interest Period of the Term Rate Loan, the applicable LIBOR or EURIBOR shall be the Interpolated Historic Screen Rate for a period equal in length to the Interest Period of that Term Rate Loan.

 

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  (e)

Reference Bank Rate: If paragraph (d) above applies but it is not possible to calculate the Interpolated Historic Screen Rate, the Interest Period of that Term Rate Loan shall, if it has been shortened pursuant to paragraph (b) above, revert to its previous length and the applicable LIBOR or EURIBOR shall be the Reference Bank Rate as of the Specified Time for the currency of that Term Rate Loan and for a period equal in length to the Interest Period of that Term Rate Loan.

 

  (f)

Cost of funds: If paragraph (e) 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 Term Rate Loan and Clause 21.4 (Cost of funds) shall apply to that Term Rate Loan for that Interest Period.

 

21.2

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.

 

21.3

Market disruption

 

  (a)

In the case of a Term Rate Loan, if before close of business in London on the Quotation Day for the relevant Interest Period the Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed 35 per cent. of that Loan) that its cost of funds relating to its participation in that Term Rate Loan would be in excess of LIBOR or, if applicable, EURIBOR then Clause 21.4 (Cost of funds) shall apply to that Term Rate Loan for the relevant Interest Period.

 

21.4

Cost of funds

 

  (a)

If this Clause 21.4 applies to a Term Rate Loan for an Interest Period, Clause 19.1 (Calculation of interest – Term Rate Loans) shall not apply to that Term Rate Loan for that Interest Period and, the rate of interest on the relevant Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:

 

  (i)

the Margin; and

 

  (ii)

the weighted average of the rates notified to the Agent by each Lender as soon as practicable and in any event within 3 Business Days of the first day of that Interest Period (or, if earlier, on the date falling ten Business Days before the date on which interest is due to be paid in respect of that Interest Period), to be that which expresses as a percentage rate per annum its cost of funds relating to its participation in that Loan.

 

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  (b)

If this Clause 21.4 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 21.4 applies but any Lender does not supply a quotation by the time specified in paragraph (a)(ii) above the rate of interest shall be calculated on the basis of the quotations of the remaining Lenders. For the avoidance of doubt (but without prejudice to the rest of this Clause 21.4), no Lender will be under an obligation to supply a quotation.

 

  (e)

If this Clause 21.4 applies the Agent shall, as soon as is practicable, notify the Company.

 

21.5

Break Costs

 

  (a)

The Relevant Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Term Rate Loan or Unpaid Sum being paid by that Borrower on a day other than the last day of an Interest Period for that Term Rate Loan or Unpaid Sum.

 

  (b)

Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.

 

22.

FEES

 

22.1

Commitment fee

The Company or ABIWW shall pay to the Agent (for the account of each Lender) a fee in the Base Currency in respect of each Lender’s Available Commitment under the Revolving Facility from (and excluding) the 2021 Amendment and Restatement Date until the end of the relevant Availability Period, computed at the rate of [***] per cent. of the applicable Margin from time to time on the Revolving Facility, payable quarterly in arrear during the relevant Availability Period, on the last day of the relevant Availability Period and on the cancelled amount of the Revolving Facility at the time a full cancellation is effective.

 

22.2

Utilisation fee

 

  (a)

In respect of each day for which, at any time, the amount of outstanding Revolving Facility Utilisations is equal to or less than 3313 per cent. of the Total Revolving Facility Commitments, the Borrower shall pay to the Agent for the account of each Lender a utilisation fee on such Lender’s portion of the Revolving Facility Utilisations calculated at the rate of [***] per cent. per annum and payable in arrear on the last day of each Interest Period under the Revolving Facility;

 

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  (b)

In respect of each day for which, at any time, the amount of outstanding Revolving Facility Utilisations exceeds 3313 per cent. of and is equal to or less than 6623 per cent. of the Total Revolving Facility Commitments, the Borrower shall pay to the Agent for the account of each Lender a utilisation fee on such Lender’s portion of the Revolving Facility Utilisations calculated at the rate of [***] per cent. per annum and payable in arrear on the last day of each Interest Period under the Revolving Facility; and

 

  (c)

In respect of each day for which, at any time, the amount of outstanding Revolving Facility Utilisations exceeds 6623 per cent. of the Total Revolving Facility Commitments, the Borrower shall pay to the Agent for the account of each Lender an additional utilisation fee on such Lender’s portion of the Revolving Facility Utilisations calculated at the rate of [***] per cent. per annum and payable in arrear on the last day of each Interest Period under the Revolving Facility.

 

22.3

Arrangement fee

The Company or ABIWW shall pay to the Arrangers an arrangement fee in the amount and at the times agreed in a Fee Letter.

 

22.4

Agency fee

The Company or ABIWW shall pay to the Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter.

 

22.5

Fees payable in respect of Letters of Credit

 

  (a)

The Company or the Relevant Borrower shall pay to the Agent (for the account of each Lender with a L/C Proportion in the relevant Letter of Credit) a Letter of Credit fee in the Base Currency (computed at the rate equal to the Margin applicable to a Revolving Facility Loan) on the outstanding amount of each Letter of Credit requested by it for the period from the issue of that Letter of Credit until its Expiry Date. This fee shall be distributed according to each Lender’s L/C Proportion of that Letter of Credit.

 

  (b)

Each Relevant Borrower shall pay to the Issuing Bank a fronting fee at the rate of [***]% per annum on the outstanding amount which is counter-indemnified by the other Lenders of each Letter of Credit requested by it for the period from the issue of that Letter of Credit until its Expiry Date.

 

  (c)

The accrued fronting fee and Letter of Credit fee on a Letter of Credit shall be payable on the last day of each successive period of three Months (or such shorter period as shall end on the Expiry Date for that Letter of Credit) starting on the date of issue of that Letter of Credit. The accrued fronting fee and Letter of Credit fee is also payable on the cancelled amount of any Lender’s Revolving Facility Commitment at the time the cancellation is effective if that Commitment is cancelled in full and the Letter of Credit is prepaid or repaid in full.

 

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23.

TAX GROSS-UP AND INDEMNITIES

 

23.1

Definitions

 

  (a)

In this Agreement:

Belgian Qualifying Lender” means a Lender which is beneficially entitled to receive any interest payment made in respect of a Loan by a Belgian Obligor without a Tax Deduction due to being:

 

  (i)

a company resident in Belgium for tax purposes or acting through a Facility Office established in Belgium to which the relevant Loan under a Finance Document is effectively connected

 

  (ii)

a credit institution within the meaning of article 105, 1°, a) of the Royal Decree implementing the Belgian Income Tax Code, which is a company resident for tax purposes in Belgium or which is acting through a Facility Office established in Belgium;

 

  (iii)

a credit institution within the meaning of article 107, §2, 5, a), second dash of the Royal Decree implementing the Belgian Income Tax Code which is acting through its head office and which is resident for tax purposes in a member state of the European Economic Area or in a country with which Belgium has entered into a double taxation agreement that is in force (irrespective of whether such agreement provides an exemption from tax imposed by Belgium);

 

  (iv)

a credit institution within the meaning of article 107, §2, 5, a), second dash of the Royal Decree implementing the Belgian Income Tax Code, that is acting through a Facility Office which is located in a member state of the European Economic Area or in a country with which Belgium has entered into a double taxation agreement that is in force (irrespective of whether or not the double taxation agreement makes provision for exemption from tax imposed by Belgium); or

 

  (v)

a Belgian Treaty Lender.

Belgian Treaty Lender” means a Treaty Lender in respect of Belgium.

Luxembourg Qualifying Lender” means a Lender which is beneficially entitled to interest payable by a Luxembourg Obligor to that Lender in respect of an advance under a Finance Document and satisfies all the conditions imposed by Luxembourg law 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.

Luxembourg Treaty Lender” means a Treaty Lender in respect of Luxembourg.

 

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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 Lender beneficially entitled to interest payable to that Lender in respect of a Loan made under the Finance Documents and which is:

 

  (i)

in respect of a Luxembourg Obligor, a Luxembourg Qualifying Lender;

 

  (ii)

in respect of a Belgian Obligor, a Belgian Qualifying Lender;

 

  (iii)

in respect of a Borrower tax resident in U.S., a US Qualifying Lender; or

 

  (iv)

a Treaty Lender.

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 23.2 (Tax gross-up) or a payment under Clause 23.3 (Tax indemnity).

Treaty Lender” means in respect of a jurisdiction, a Lender entitled under the provisions of a double taxation treaty to receive payments of interest from an Obligor that is tax resident in such jurisdiction or that has a permanent establishment in such jurisdiction to which the advances under the Finance Documents are effectively connected without a Tax Deduction (subject to the completion of any necessary procedural formalities).

US Qualifying Lender” means a Lender which is:

 

  (i)

a “United States person” within the meaning of Section 7701(a)(30) of the Code, provided such Lender timely has delivered to the Agent for transmission to the Obligor making such payment two original copies of IRS Form W-9 (or any successor form) either directly or under cover of IRS Form W-8IMY (or any successor form) certifying its status as a “United States person”; or

 

  (ii)

a US Treaty Lender with respect to the United States of America, provided such Lender timely has delivered to the Agent for transmission to the Obligor making such payment two original copies of IRS Form W-8BEN (or any successor form) or IRS Form W-8BEN-E (or any successor form) either directly or under cover of IRS Form W-8IMY (or any successor form) certifying its entitlement to receive such payments without any such deduction or withholding under the applicable double taxation treaty; or

 

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  (iii)

entitled to receive payments under the Finance Documents without deduction or withholding of any United States federal income Taxes either as a result of such payments being effectively connected with the conduct by such Lender of a trade or business within the United States or under the portfolio interest exemption, provided such Lender timely has delivered to the Agent for transmission to the Obligor making such payment two original copies of either (A) IRS Form W-8ECI (or any successor form) either directly or under cover of IRS Form W-8IMY (or any successor form) certifying that the payments made pursuant to the Finance Documents are effectively connected with the conduct by that Lender of a trade or business within the United States or (B) IRS Form W-8BEN (or any successor form) or IRS Form W-8BEN-E (or any successor form)either directly or under cover of IRS Form W-8IMY (or any successor form) claiming exemption from withholding in respect of payments made pursuant to the Finance Documents under the portfolio interest exemption and a statement certifying that such Lender is not a person described in Section 871(h)(3)(B) or Section 881(c)(3) of the Code or (C) such other applicable form prescribed by the IRS certifying as to such Lender’s entitlement to exemption from United States withholding tax with respect to all payments to be made to such Lender under the Finance Documents.

For purposes of paragraphs (i), (ii) and (iii) above, in the case of a Lender that is not treated as the beneficial owner of the payment (or a portion thereof) under Chapter 3 and related provisions (including Sections 871, 881, 3406, 6041, 6045 and 6049) of the Code, the term “Lender” shall mean the person who is so treated as the beneficial owner of the payment (or portion thereof).

US Treaty Lender” means a Treaty Lender in respect of the United States.

 

  (b)

Unless a contrary indication appears, in this Clause 23 a reference to “determines” or “determined” means a determination made in the absolute discretion of the person making the determination.

 

23.2

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 Company 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 Issuing Bank shall notify the Agent on becoming so aware in respect of a payment payable to that Lender or Issuing Bank. If the Agent receives such notification from a Lender or Issuing Bank it shall notify the Company and that Obligor.

 

  (c)

If a Tax Deduction is required by law to be made by an Obligor or the Agent, 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.

 

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  (d)

A Borrower is not required to make an increased payment to a Lender under paragraph (c) above for a Tax Deduction in respect of tax imposed by Belgium, Luxembourg or the United States from a payment of interest on a Loan, if on the date on which the payment falls due:

 

  (i)

the payment could have been made to the relevant Lender without a Tax Deduction if it was a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty, or any published practice or concession of any relevant taxing authority; or

 

  (ii)

the relevant Lender is a Qualifying 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 (g) below.

 

  (e)

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.

 

  (f)

Within thirty 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 evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

 

  (g)

A Qualifying Lender and each Obligor which makes a payment to which that Qualifying Lender is entitled shall co-operate in completing any procedural formalities necessary for that Obligor to obtain authorisation or to be allowed under the applicable law to make that payment without a Tax Deduction to make that payment without a Tax Deduction.

 

23.3

Tax indemnity

 

  (a)

The Company or ABIWW shall (within ten 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 or the transactions occurring under such Finance Document.

 

  (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

 

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  (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 23.2 (Tax gross-up);

 

  (B)

would have been compensated for by an increased payment under Clause 23.2 (Tax gross-up) but was not so compensated solely because one of the exclusions in paragraph (d) of Clause 23.2 (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 Company.

 

  (d)

A Protected Party shall, on receiving a payment from an Obligor under this Clause 23.3, notify the Agent.

 

23.4

Tax Credit

If an Obligor makes a Tax Payment and the relevant Finance Party determines that:

 

  (a)

a Tax Credit is attributable either to an increased payment of which that Tax Payment forms part or to that Tax Payment; and

 

  (b)

that Finance Party has obtained, utilised and retained that Tax Credit,

the Finance Party shall pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Obligor.

 

23.5

Lender Status Confirmation

 

  (a)

Each person that is a Lender on the 2021 Amendment and Restatement Date confirms (for the benefit of the Agent and without liability to any Obligor) that, on the 2021 Amendment and Restatement Date, its status is as set out next to its name in Part IV (The New Lenders) of Schedule 1 (The Parties) of the 2021 Amendment and Restatement Agreement.

 

  (b)

Each Lender which becomes a Party to this Agreement after the 2021 Amendment and Restatement Date shall indicate (for the benefit of the Agent and without liability to any Obligor), in the documentation which it executes on becoming a Party as a Lender which of the following categories it falls into:

 

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  (i)

in respect of a Belgian Obligor:

 

  (A)

a Belgian Qualifying Lender (other than a Belgian Treaty Lender);

 

  (B)

a Belgian Treaty Lender; or

 

  (C)

not a Belgian Qualifying Lender,

 

  (ii)

in respect of a Luxembourg Obligor:

 

  (A)

a Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender);

 

  (B)

a Luxembourg Treaty Lender; or

 

  (C)

not a Luxembourg Qualifying Lender,

 

  (iii)

in respect a Borrower tax resident in U.S:

 

  (A)

a US Qualifying Lender (other than a US Treaty Lender);

 

  (B)

a US Treaty Lender; or

 

  (C)

not a US Qualifying Lender.

 

  (c)

If such a Lender fails to indicate its status in accordance with paragraph (b) of this Clause 23.5, then that Lender shall be treated for the purposes of this Agreement as if it is not a Qualifying Lender in respect of each Obligor until such time as it notifies the Agent which category applies (and the Agent, upon receipt of such notification, shall inform the Company and the relevant Obligor). For the avoidance of doubt, the documentation which a Lender executes on becoming a Party to this Agreement shall not be invalidated by any failure of a Lender to comply with this Clause 23.5.

 

  (d)

Each Lender which indicates its status in accordance with paragraph (a) or (b) above shall notify the relevant Obligor and the Agent in writing if it ceases to be a Qualifying Lender promptly after becoming aware of such a change.

 

  (e)

As at the 2021 Amendment and Restatement Date, each person that is a Lender on the 2021 Amendment and Restatement Date represents that it is not incorporated, having its place of effective management, or acting through a Facility Office or office, as the case may be, located in a Non-Cooperative Jurisdiction.

 

  (f)

Each Lender which becomes a Party to the Agreement after the 2021 Amendment and Restatement Date shall indicate, in the documentation which it executes on becoming a Party as a Lender whether it is incorporated, having its place of effective management, or acting through a Facility Office or office, as the case may be, located in a Non-Cooperative Jurisdiction.

 

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  (g)

Each Lender (including, for the avoidance of doubt any New Lender) under a Facility made available to a Belgian Obligor shall notify the Belgian Obligor:

 

  (i)

if the state or territory in which it is incorporated, resident or established or where its Facility Office is established becomes a Non-Cooperative Jurisdiction; and

 

  (ii)

if the bank account(s) to which payments to which that Lender is entitled has (have) or will be made, are:

 

  (A)

managed or held by a person or persons incorporated, resident or established in a Non-Cooperative Jurisdiction or by the permanent establishment of a non-resident of Belgium situated in a Non-Cooperative Jurisdiction;

 

  (B)

managed by, or opened with:

 

  (1)

a financial institution incorporated, resident or established in a Non-Cooperative jurisdiction; or

 

  (2)

a branch or office of a financial institution situated in a Non-Cooperative Jurisdiction;

in each case at such time or during such period or, as the case may be, in connection with such payments, as indicated by the Belgian Obligor in a request to make such notification. The Lender shall make such notification within 15 Business Days of demand of the Obligor.

 

  (h)

Upon request, each Lender (including, for the avoidance of doubt any New Lender) shall provide information reasonably requested by a Belgian Obligor demonstrating that it cannot be considered as an artificial construction within the meaning of article 198, §1, 10° of the Belgian Income Tax Code 1992 if:

 

  (i)

the state or territory in which it is or becomes incorporated, resident or established or here its Facility Office is or becomes established is a Non-Cooperative Jurisdiction; and

 

  (ii)

the bank account(s) to which payments to which that Lender is entitled has (have) or will be made, are:

 

  (A)

managed or held by a person or persons incorporated, resident or established in a Non-Cooperative Jurisdiction or by the permanent establishment of a non-resident of Belgium situated in a Non-Cooperative Jurisdiction;

 

  (B)

managed by, or opened with:

 

  (1)

a financial institution incorporated, resident or established in a Non-Cooperative jurisdiction;

 

  (2)

a branch or office of a financial institution situated in a Non-Cooperative Jurisdiction;

 

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  (i)

The Lender shall provide such information within 15 Business Days following the receipt of a demand of the Obligor (which demand shall refer to this clause 23.5). Such demand can be made by the Belgian Obligor prior to each date on which an interest is payable under a Finance Document.

 

23.6

Stamp taxes

The Company or ABIWW shall pay and, within ten Business Days of demand, indemnify each Finance Party against any cost, loss or liability that Finance Party incurs in relation to all stamp duty, registration, excise and other similar Taxes payable in respect of any Finance Document except for any such Tax payable in connection with the entry into a Transfer Certificate and, with respect to Luxembourg registration duties (droits d’enregistrement), any Luxembourg tax payable due to a registration of a Finance Document when such registration is not required to maintain or preserve the rights of any Finance Party.

 

23.7

Value added tax

 

  (a)

All amounts set out, or expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply, and accordingly, subject to paragraph (c) below, if VAT is chargeable on any supply made by any Finance Party to any Party under a Finance Document, that Party shall pay to the Finance Party (in addition to and at the same time as paying the consideration) an amount equal to the amount of the VAT (and such Finance Party shall promptly provide an appropriate VAT invoice to such Party), or where applicable, directly account for such VAT at the appropriate rate under the reverse charge procedure provided for by articles 44 and 196 of the European Directive 2006/112/EC (replacing European Directive 77/388/EC) and any relevant tax provisions of the jurisdiction in which such Party receives such supply (in which case no amount equal to the amount of VAT will be due to the Finance Party).

 

  (b)

If VAT is chargeable on any supply made by any Finance Party (the “Supplier”) to any other Finance Party (the “Recipient”) under a Finance Document, and any Party (the “Relevant Party”) is required by the terms of any Finance Document to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse the Recipient in respect of that consideration):

 

  (i)

(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party shall also pay (as the case may be) to the Recipient or to the Supplier (in addition to and at the same time as paying such amount) an amount equal to the amount of such VAT. The Recipient will promptly pay to the Relevant Party an amount equal to any credit or repayment from the relevant tax authority which it reasonably determines relates to the VAT chargeable on that supply; and

 

  (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.

 

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  (c)

Where a Finance Document requires any Party to reimburse a Finance Party for any costs or expenses, that Party shall also at the same time pay and indemnify the Finance Party against all VAT incurred by the Finance Party in respect of the costs or expenses to the extent that the Finance Party reasonably determines that neither it nor any other member of any group of which is a member for VAT purposes is entitled to credit or repayment from the relevant tax authority in respect of the VAT.

 

  (d)

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.

 

23.8

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; and

 

  (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.

 

  (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

 

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  (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 (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 U.S. 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 the Original Borrower is a U.S. Tax Obligor and the relevant Lender is an Original Lender, the date of this Agreement;

 

  (ii)

where a Borrower is a U.S. Tax Obligor on a date on which any other Lender becomes a Party as a Lender, that date;

 

  (iii)

the date a new U.S. Tax Obligor accedes as a Borrower; or

 

  (iv)

where a Borrower is not a U.S. 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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23.9

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 Company and the Agent and the Agent shall notify the other Finance Parties.

 

24.

INCREASED COSTS

 

24.1

Increased costs

 

  (a)

Subject to Clause 24.3 (Exceptions) the Company or ABIWW shall, within ten Business Days of a demand by the Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of:

 

  (i)

the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation after the date of this Agreement;

 

  (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 or CRD IV or any law or regulation that implements or applies Basel III or CRD IV.

 

  (b)

In this Agreement:

 

  (i)

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.

 

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  (ii)

Basel III” means:

 

  (A)

the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;