EX-4.(A)(V) 2 snn-20181231ex4av2915a4.htm EX-4.(A)(V) snn_Ex4(a)(v)

Exhibit 4(a)(v)

DATED 15 JUNE 2018

SMITH & NEPHEW PLC

Arranged by

J.P. MORGAN SECURITIES PLC,

BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED,

BANK OF CHINA LIMITED, LONDON BRANCH,

HSBC BANK PLC,

MIZUHO BANK, LTD.,

SOCIETE GENERALE, LONDON BRANCH,

SUMITOMO MITSUI BANKING CORPORATION

and

WELLS FARGO BANK N.A., LONDON BRANCH

 

With

HSBC BANK PLC

(as Facility Agent)


REVOLVING FACILITY AGREEMENT

USD 1,000,000,000


 

 


 

 

Smith & Nephew – RCF

EXECUTION VERSION

CONTENTS

 

 

 

 

CLAUSE

PAGE

 

 

 

1.

INTERPRETATION

4

2.

FACILITY

20

3.

PURPOSE

22

4.

CONDITIONS PRECEDENT

22

5.

UTILISATION

23

6.

OPTIONAL CURRENCIES

24

7.

REPAYMENT

26

8.

PREPAYMENT AND CANCELLATION

28

9.

INTEREST

32

10.

TERMS

36

11.

CHANGES TO THE CALCULATION OF INTEREST

37

12.

TAXES

40

13.

INCREASED COSTS

48

14.

MITIGATION

50

15.

PAYMENTS

51

16.

GUARANTEE AND INDEMNITY

53

17.

REPRESENTATIONS

56

18.

INFORMATION COVENANTS

58

19.

GENERAL COVENANTS

61

20.

DEFAULT

65

21.

THE ADMINISTRATIVE PARTIES

68

22.

EVIDENCE AND CALCULATIONS

77

23.

FEES

77

24.

INDEMNITIES AND BREAK COSTS

78

25.

EXPENSES

80

26.

AMENDMENTS AND WAIVERS

81

27.

CHANGES TO THE PARTIES

86

28.

CONFIDENTIALITY

92

29.

SET OFF

96

30.

PRO RATA SHARING

96

31.

SEVERABILITY

97

32.

COUNTERPARTS

97

33.

NOTICES

97

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34.

LANGUAGE

100

35.

GOVERNING LAW

100

36.

ENFORCEMENT

100

SCHEDULE 1 ORIGINAL LENDERS

101

SCHEDULE 2 CONDITIONS PRECEDENT DOCUMENTS

103

PART A TO BE DELIVERED BEFORE THE FIRST REQUEST

103

PART B FOR AN ADDITIONAL OBLIGOR

104

SCHEDULE 3 FORM OF REQUEST

106

SCHEDULE 4 FORM OF TRANSFER CERTIFICATE

107

SCHEDULE 5 FORM OF ACCESSION AGREEMENT

110

SCHEDULE 6 FORM OF RESIGNATION REQUEST

111

SCHEDULE 7 FORM OF COMPLIANCE CERTIFICATE

112

SCHEDULE 8 FORM OF INCREASE CONFIRMATION

113

SCHEDULE 9 FORM OF EXTENSION NOTICE

116

SCHEDULE 10 TIMETABLES

117

 

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THIS AGREEMENT is dated 15 June 2018

BETWEEN:

(1)         SMITH & NEPHEW PLC (the Company);

(2)         J.P. MORGAN SECURITIES PLC, BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED, BANK OF CHINA LIMITED, LONDON BRANCH, HSBC BANK PLC, MIZUHO BANK, LTD., SOCIETE GENERALE, LONDON BRANCH, SUMITOMO MITSUI BANKING CORPORATION and WELLS FARGO BANK N.A., LONDON BRANCH as arrangers (whether acting individually or together the Mandated Lead Arrangers);

(3)         THE FINANCIAL INSTITUTIONS listed in Schedule 1 (Original Lenders) as original lenders (the Original Lenders); and

(4)         HSBC BANK PLC as facility agent (in this capacity the Facility Agent).

IT IS AGREED as follows:

1.          INTERPRETATION

1.1        Definitions

In this Agreement:

Acceptable Bank means a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of A- or higher by Standard & Poor’s or Fitch or A3 or higher by Moody’s or a comparable rating from an internationally recognised credit rating agency.

Accession Agreement means a letter, substantially in the form of Schedule 5 (Form of Accession Agreement), with such amendments as the Facility Agent and the Company may agree.

Additional Borrower means a member of the Group which becomes a Borrower after the date of this Agreement in accordance with Clause 27 (Changes to the Parties). Additional Guarantor means a member of the Group which becomes a Guarantor after the date of this Agreement in accordance with Clause 27 (Changes to the Parties).

Additional Obligor means an Additional Borrower or an Additional Guarantor.

Administrative Party means a Mandated Lead Arranger or the Facility Agent.

Affiliate means a Subsidiary or a Holding Company of a person or any other Subsidiary of that Holding Company.

Anti-Corruption Laws means all laws, rules and regulations of any jurisdiction applicable to any Obligor or any member of the Group from time to time concerning or relating to bribery or corruption.

Anti-Money Laundering Laws means any applicable laws or regulations in any jurisdiction in which any Obligor or any member of the Group is located or doing business that relate to money laundering, any predicate crime to money laundering, or any financial record keeping and/or reporting requirements related thereto.

Availability Period means the period from and including the date of this Agreement to and including the date falling four weeks before the Final Maturity Date.

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Available Commitment means a Lender’s Commitment minus:

(a)         the Dollar Amount of its participation in any outstanding Loans; and

(b)         in relation to any proposed Utilisation, the Dollar Amount of its participation in any Loans that are due to be made on or before the proposed Utilisation Date,

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

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

Borrower means the Company or an Additional Borrower.

Break Costs means the amount (if any) which a Lender is entitled to receive under this Agreement as compensation if any part of a Loan or overdue amount is prepaid as calculated pursuant to the terms of Clause 24.3 (Break Costs).

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

(a)         if on that day a payment in or purchase of a currency (other than euro) is to be made, the principal financial centre of the country of that currency; or

(b)         if on that day a payment in or a purchase of euro is to be made, which is also a TARGET Day.

Code means the United States Internal Revenue Code of 1986 (or any successor legislation thereto), as amended from time to time, and the regulations promulgated and the rulings issued thereunder, all as the same may be in effect at such date.

Commitment means:

(a)         in relation to an Original Lender, the amount in U.S. Dollars set opposite its name under the heading Commitment in Schedule 1 (Original Lenders) and the amount of any other 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 U.S. Dollars of any 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.

Committed Currency means Sterling and euro.

Compliance Certificate has the meaning given to it in Clause 18.2 (Compliance Certificate).

Confidential Information means all information relating to the Company, any Obligor, the Group, the Finance Documents or the Revolving Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or the Revolving 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,

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in whatever form, and includes information given orally, 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 28 (Confidentiality); or

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

(C)        is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and

(ii)         any Funding Rate or Reference Bank Quotation.

Confidentiality Undertaking means a confidentiality undertaking substantially in the recommended form of the LMA or in any other form agreed between the Company and the Facility Agent.

Default means:

(a)         an Event of Default; or

(b)         an event referred to in Clause 20 (Default) which would be (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of them) an Event of Default.

Defaulting Lender means any Lender:

(a)         which has failed to make its participation in a Loan available or has notified the Facility 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 (Advance of Loan);

(b)         which has otherwise rescinded or repudiated a Finance Document; or

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

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

(i)         its failure to pay is caused by:

(A)       administrative or technical error; or

(B)        a Disruption Event; and,

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

(ii)        the Facility Agent is an Impaired Agent and the Company has failed to notify the Lenders by giving not less than three Business Days’ prior notice of alternative arrangements for that payment; or

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(iii)       the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.

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 Revolving Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

(b)         the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

(i)          from performing its payment obligations under the Finance Documents; or

(ii)         from communicating with other Parties in accordance with the terms of the Finance Documents,

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

Dollar Amount has the meaning ascribed thereto in Clause 6.4(b) (Optional Currency equivalents).

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.

€ or euro means the single currency of the Participating Member States.

ERISA means, at any date, the United States Employee Retirement Income Security Act of 1974 (or any successor legislation thereto), as amended from time to time, and the regulations promulgated and the rulings issued thereunder, all as the same may be in effect at such date.

ERISA Affiliate means any person that for the purposes of Title IV of ERISA and Section 412 of the Code would be deemed at any relevant time to be a single employer with an Obligor, pursuant to Section 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA.

ERISA Event means:

(a)         any reportable event, as defined in Section 4043(c) of ERISA, with respect to a Plan, as to which PBGC has not by regulation waived the requirement of Section 4043(a) of ERISA that it be notified of such event;

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

(c)         the institution of proceedings under Section 4042 of ERISA by PBGC for the termination of, or the appointment of a trustee to administer, any Plan;

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(d)         any failure by any Plan to satisfy the minimum funding requirements of Section 412 and 430 of the Code or Section 302 of ERISA applicable to such Plan, in each case whether or not waived;

(e)         the failure to make a required contribution to any Plan that would result in the imposition of an encumbrance under Section 412 or 430 of the Code, or at any time prior to the date hereof, a filing under Section 412 of the Code or Section 302 of ERISA of any request for a minimum funding variance with respect to any Plan;

(f)         an engagement in a non-exempt prohibited transaction within the meaning of Section 4975 of the Code or Section 406 of ERISA;

(g)         the complete or partial withdrawal of any Obligor or any ERISA Affiliate from a Multiemployer Plan; and

(h)         a determination that any Plan is, or is reasonably expected to be, in “at risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code).

EURIBOR means for a Term of any Loan in euro:

(a)         the applicable Screen Rate as of the Specified Time for euro and for a period equal in length to the Term of that Loan; or

(b)         as otherwise determined pursuant to Clause 11.1 (Unavailability of Screen Rate),

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

Event of Default means an event or circumstance specified as such in this Agreement.

Existing Facilities Agreement means the U.S.$2,400,000,000 term and revolving credit facility dated 24 March 2014 between, amongst others, the Company as borrower and The Royal Bank of Scotland plc as facility agent.

Extension Notice means a notice substantially in the form set out in Schedule 9 (Form of Extension Notice).

Facility Agent’s Dollar Rate of Exchange means:

(a)         the Facility Agent’s spot rate of exchange for the purchase of the relevant currency in the London foreign exchange market with U.S. Dollars at or about 11.00 a.m. on a particular day; or

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

Facility Office means the office(s) notified by a Lender to the Facility Agent in writing:

(a)         on or before the date it becomes a Lender; or

(b)         by not less than five Business Days’ written notice,

as the office(s) through which it will perform its obligations under this Agreement.

FATCA means:

(a)         sections 1471 to 1474 of the Code or any associated regulations;

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

(c)         any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the U.S. Internal Revenue Service, the U.S. government or any governmental or taxation authority in any other jurisdiction.

FATCA Application Date means:

(a)         in relation to a withholdable payment described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the U.S.), 1 July 2014;

(b)         in relation to a withholdable payment described in section 1473(1)(A)(ii) of the Code (which relates to gross proceeds from the disposition of property of a type that can produce interest from sources within the U.S.), 1 January 2019; or

(c)         in relation to a passthru payment described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2019,

or, in each case, such other date from which such payment may become subject to a deduction or withholding required by FATCA as a result of any change in FATCA after the date of this Agreement.

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

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

Fee Letter  means any letter entered into by reference to this Agreement between one or more Administrative Parties and the Company setting out the amount of certain fees referred to in this Agreement.

Final Maturity Date means, subject to Clause 7.2 (Extension option), the date falling five years after the date of this Agreement.

Finance Document means:

(a)         this Agreement;

(b)         any Fee Letter;

(c)         any Transfer Certificate;

(d)         any Accession Agreement;

(e)         any Resignation Request;

(f)         any Increase Confirmation;

(g)         any Extension Notice; and

(h)         any other document designated as such by the Facility Agent and the Company.

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Finance Party means a Lender or an Administrative Party.

Financial Indebtedness means any indebtedness (without double counting) for or in respect of:

(a)         moneys borrowed;

(b)         any amount raised by acceptance under any acceptance credit facility (or dematerialised equivalent);

(c)         any bond, note, debenture, loan stock or other similar instrument;

(d)         any finance or capital lease as defined in accordance with the accounting principles applied in connection with the Original Financial Statements;

(e)         receivables sold or discounted (otherwise than on a non recourse basis);

(f)         the acquisition cost of any asset to the extent payable after its acquisition or possession by the party liable where the deferred payment is arranged primarily as a method of raising finance or financing the acquisition of that asset;

(g)         any derivative transaction protecting against or benefiting from fluctuations in any rate or price (and at any time the then marked to market value of the derivative transaction will be used to calculate its amount, such marked to market value being determined by reference to the documentation of that transaction or, if there is no such provision in the documentation, determined by the Company acting reasonably and on the basis of quotations from the relevant counterparty);

(h)         any other transaction (including any forward sale or purchase agreement) of a type not referred to in any other paragraph of this definition which has the commercial effect of a borrowing;

(i)          any counter indemnity obligation in respect of any guarantee, indemnity, bond, letter of credit or any other instrument issued by a bank or financial institution; or

(j)          any guarantee, indemnity or similar assurance against financial loss of any person in respect of any item referred to in paragraphs (a) to (i) above,

provided that the definition of Financial Indebtedness does not include any indebtedness owing from a member of the Group to another member of the Group.

Fitch means Fitch Ratings Limited or Fitch Ratings Inc. (as appropriate), or any successor to its ratings business.

Funding Rate means any individual rate notified to the Facility Agent by a Lender pursuant to paragraph (a)(ii) of Clause 11.4 (Cost of funds).

Group means the Company and its Subsidiaries.

Guarantor means the Company or an Additional Guarantor.

Holding Company means a holding company within the meaning of section 1159 of the Companies Act 2006.

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Impaired Agent means the Facility Agent at any time when:

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

(b)         the Facility Agent otherwise rescinds or repudiates a Finance Document;

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

(d)         an Insolvency Event has occurred and is continuing with respect to the Facility Agent;

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

(i)          its failure to pay is caused by:

(A)        administrative or technical error; or

(B)        a Disruption Event; and

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

(ii)        the Facility 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 8 (Form of Increase Confirmation).

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

Increased Cost means:

(a)         an additional or increased cost;

(b)         a reduction in the rate of return under a Finance Document or on the overall capital of a Finance Party or any of its Affiliates; or

(c)         a reduction of an amount due and payable under any Finance Document,

which is incurred or suffered by a Finance Party or any of its Affiliates but only to the extent attributable to that Finance Party having entered into any Finance Document or funding or performing its obligations under any Finance Document.

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 in each case, under the laws of any relevant jurisdiction applicable to that Finance Party or fails or admits in writing its inability generally to pay its debts as they become due;

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

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(d)         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;

(e)         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; or

(f)         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 (e) above.

Interpolated Screen Rate means, in relation to LIBOR for any Loan, or EURIBOR for any Loan denominated in euros, 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 Term of that Loan; and

(b)         the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Term of that Loan,

each as of the Specified Time on the Rate Fixing Day for the currency of that Loan.

Lender means:

(a)         an Original Lender; or

(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 27 (Changes to the Parties),

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

LIBOR means for a Term of any Loan:

(a)         the applicable Screen Rate as of the Specified Time for the currency of that Loan and for a period equal in length to the Term of that Loan; or

(b)         as otherwise determined pursuant to Clause 11.1 (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 loan made or to be made under the Revolving Facility or the principal amount outstanding for the time being of that loan.

Majority Lenders means, at any time, a Lender or Lenders:

(a)         whose share in the outstanding Loans and whose undrawn Commitments then aggregate 60 per cent. or more of the aggregate of all the Loans and the undrawn Commitments of all the Lenders;

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(b)         if there is no Loan then outstanding, whose undrawn Commitments then aggregate 60 per cent. or more of the Total Commitments; or

(c)         if there is no Loan then outstanding and the Total Commitments have been reduced to zero, whose Commitments aggregated 60 per cent. or more of the Total Commitments immediately before the reduction.

Margin means the margin payable on Loans, calculated in accordance with Clause 9.5 (Margin adjustments).

Margin Regulations means Regulations T, U and X issued by the Board of Governors of the United States Federal Reserve System.

Margin Stock means “margin stock” or “margin securities” as defined in the Margin Regulations.

Material Adverse Effect means a material adverse effect on the ability of an Obligor to comply with its payment obligations under this Agreement.

Material Subsidiary means, at any time, a Subsidiary of the Company:

(a)         whose gross assets (excluding intra Group items) then equal or exceed 15 per cent. of the gross assets of the Group; or

(b)         whose earnings before interest and tax (excluding intra Group items) then equal or exceed 15 per cent. of the earnings before interest and tax of the Group.

For this purpose:

(i)          the gross assets or earnings before interest and tax of a Subsidiary of the Company will be determined from its financial statements (consolidated if it has Subsidiaries) upon which the latest audited financial statements of the Group have been based;

(ii)         if a Subsidiary of the Company becomes a member of the Group after the date on which the latest audited financial statements of the Group have been prepared, the gross assets or earnings before interest and tax of that Subsidiary will be determined from its latest financial statements;

(iii)       the gross assets or earnings before interest and tax of the Group will be determined from its latest audited financial statements, adjusted (where appropriate) to reflect the gross assets or earnings before interest and tax of any company or business subsequently acquired or disposed of; and

(iv)        if a Material Subsidiary disposes of all or substantially all of its assets to another Subsidiary of the Company, it will immediately cease to be a Material Subsidiary and the other Subsidiary (if it is not already) will immediately become a Material Subsidiary; the subsequent financial statements of those Subsidiaries and the Group will be used to determine whether those Subsidiaries are Material Subsidiaries or not.

If there is a dispute as to whether or not a member of the Group is a Material Subsidiary, a certificate of the auditors of the Company will be, in the absence of manifest error, conclusive.

Moody’s means Moody’s Investors Service Limited or any successor to its ratings business.

Multiemployer Plan means a “multiemployer plan” (as defined in Section 3(37) of ERISA) that is subject to Title IV of ERISA to which an Obligor or any ERISA Affiliate is required to contribute.

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New Lender has the meaning given to that term in Clause 27 (Changes to the Parties).

Obligor means a Borrower or a Guarantor.

Optional Currency means a currency (other than U.S. Dollars) in which a Loan may be denominated under this Agreement.

Original Financial Statements means the audited consolidated financial statements of the Company for the year ended 31 December 2017.

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

Party means a party to this Agreement.

PBGC means the United States Pension Benefit Guaranty Corporation referred to and defined in ERISA.

Plan means an employee benefit plan as defined in Section 3(3) of ERISA that is subject to Title IV of ERISA (other than a Multiemployer Plan):

(a)         maintained by any Obligor or any ERISA Affiliate; or

(b)         to which any Obligor or any ERISA Affiliate is required to make any payment or contribution.

Pro Rata Share means:

(a)         for the purpose of determining a Lender’s participation in a Utilisation, the proportion which its Available Commitment bears to the Available Facility; and

(b)         for any other purpose at any time:

(i)          the proportion which a Lender’s share of the Loans (if any) bears to all the Loans;

(ii)         if there is no Loan outstanding at the relevant time, the proportion which its Commitment bears to the Total Commitments at that time; or

(iii)       if there is no Loan outstanding and the Total Commitments have been cancelled at the relevant time, the proportion which its Commitments bore to the Total Commitments immediately before being cancelled.

Rate Fixing Day means:

(a)         the first day of a Term for a Loan denominated in Sterling;

(b)         the second Business Day before the first day of a Term for a Loan denominated in any other currency (other than euro); or

(c)         the second TARGET Day before the first day of a Term for a Loan denominated in euro,

unless market practice differs in the Relevant Market for a currency, in which case the Rate Fixing Day for that currency will be determined by the Facility 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 Rate Fixing Day will be the last of those days).

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Reference Bank Quotation means any quotation supplied to the Facility 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 Facility Agent at its request by the Reference Banks:

(i)          in relation to LIBOR as either:

(A)        if:

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

(II)        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.

(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.

Reference Banks means Mizuho Bank, Ltd. and Societe Generale, London Branch and any other bank or financial institution agreed by the Facility Agent and the Company under this Agreement.

Relevant Market means in relation to euros, the European interbank market and, in relation to any other currency, the London interbank market.

Repeating Representations means the representations that are deemed to be repeated under this Agreement.

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

Request means a request for a Loan, substantially in the form of Schedule 3 (Form of Request).

Resignation Request has the meaning given to that term in Clause 27.7 (Resignation of an Obligor (other than the Company)).

Revolving Facility means the revolving loan facility made available under this Agreement as described in Clause 2.1 (The Facility).

Rollover Loan means one or more Loans:

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(a)         made or to be made on the same day that a maturing Loan is due to be repaid;

(b)         the aggregate amount of which is equal to or less than the amount of the maturing Loan;

(c)         in the same currency as the maturing Loan (unless it arose as a result of the operation of Clause 6.3 (Unavailability of a currency)); and

(d)         made or to be made to the same Borrower for the purpose of refinancing a maturing Loan.

Sanctioned Country means, at any time, a country or territory which is itself subject to a general export, import, financial or investment embargo under any Sanctions (at the time of this Agreement, the Crimea Region, Cuba, Iran, North Korea and Syria).

Sanctioned Person means, at any time:

(a)         any person listed in any Sanctions-related list of designated persons maintained by any Sanctions Authority as updated from time to time;

(b)         any person owned or controlled by, or acting on behalf or at the direction of, any person or persons described in (a); or

(c)         any person operating, organised or located in a Sanctioned Country.

Sanctions means any economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by:

(a)         the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State; or

(b)         the United Nations Security Council, the European Union, any EU Member State or Her Majesty’s Treasury of the United Kingdom; or

(c)         the Japan Ministry of Finance (the authorities listed in (a), (b) and (c) being Sanctions Authorities and each a Sanction Authority).

Screen Rate means:

(a)         in relation to LIBOR, the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate); and

(b)         in relation to EURIBOR, the euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate),

or, in each case, on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters. If such page or service ceases to be available, the Facility Agent may specify another page or service displaying the Relevant Market rate after consultation with the Company.

Security Interest means any mortgage, pledge, lien, charge, assignment, hypothecation or other security interest securing any obligation of any person or other agreement or arrangement entered into with the intention of creating security.

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Separate Loan has the meaning given to that term in Clause 7.1(c) (Repayment of Loans).

Specified Time means a day or time determined in accordance with Schedule 10 (Timetables).

Standard & Poor’s means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies Inc., or any successor to its ratings business.

Sterling or £ means the lawful currency for the time being of the U.K.

Subsidiary means:

(a)         a subsidiary within the meaning of section 1159 of the Companies Act 2006; and

(b)         for the purposes of Clause 9 (Interest), unless the context otherwise requires, a subsidiary undertaking within the meaning of section 1162 of the Companies Act 2006.

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.

TARGET Day means any day on which TARGET2 is open for the settlement of payments in euro.

Tax means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).

Tax Payment means a payment made by an Obligor to a Finance Party in any way relating to a Tax Deduction, including an increase in a payment made by an Obligor to a Finance Party under Clause 12.2 (Tax gross up) or a payment under Clause 12.3 (Tax indemnity).

Term means each period determined under this Agreement by reference to which interest on a Loan or an overdue amount is calculated.

Total Commitments means the aggregate of the Commitments, being U.S.$1,000,000,000 at the date of this Agreement.

Transfer Certificate means a certificate in the form of Schedule 4 (Form of Transfer Certificate) with such amendments as the Facility Agent may approve or reasonably require or any other form agreed between the Facility Agent and the Company.

Transfer Date means, in relation to an assignment or a transfer, the later of:

(a)         the proposed Transfer Date specified in the relevant Transfer Certificate; and

(b)         the date on which the Facility Agent executes the relevant Transfer Certificate.

U.K. means the United Kingdom of Great Britain and Northern Ireland.

U.K. Tax means any Tax imposed under the laws of the U.K.

U.S. means the United States of America including any state of the United States of America and the District of Colombia.

U.S. Dollars or U.S.$ means the lawful currency for the time being of the United States of America.

Utilisation means a utilisation of the Revolving Facility.

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Utilisation Date means the date on which the Revolving Facility is utilised.

VAT means:

(a)         any Tax charged in accordance with the Value Added Tax Act 1994, as may be amended or substituted from time to time;

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

(c)         any other Tax of a similar nature whether imposed in substitution for, or levied in addition to, any Tax referred to in paragraphs (a) or (b) above, or imposed elsewhere.

1.2        Construction

(a)         The following definitions have the meanings given to them in Clause 9 (Interest):

(i)          Consolidated Cash and Cash Equivalents;

(ii)         Consolidated Interest Payable;

(iii)       Consolidated Total Borrowings;

(iv)        Measurement Period;

(v)         Testing Date;

(vi)        Consolidated Total Net Borrowings;

(vii)       Consolidated EBITDA; and

(viii)     Consolidated Net Interest Payable.

(b)         In this Agreement, unless the contrary intention appears, a reference to:

(i)          an amendment includes a supplement, novation, extension, (whether of maturity or otherwise), restatement, re-enactment or replacement (however fundamental and whether or not more onerous) and amended is to be construed accordingly;

(ii)         assets includes present and future properties, revenues and rights of every description;

(iii)       an authorisation includes an authorisation, consent, approval, resolution, permit, licence, exemption, filing, registration or notarisation;

(iv)        the Facility Agent, the Arranger, any Finance Party, any Lender, any Obligor or any Party shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents;

(v)         a group of Lenders includes all the Lenders;

(vi)        indebtedness includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

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(vii)       “know your customer” checks are to the identification checks that a Finance Party requests to meet its obligations under any applicable law or regulation to identify a person who is (or is to become) its customer;

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

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

(x)         a  currency is a reference to the lawful currency for the time being of the relevant country;

(xi)        a Default being outstanding means that it has not been remedied or waived;

(xii)       a  provision of law is a reference to that provision as extended, applied, amended or re-enacted and includes any subordinate legislation;

(xiii)      a  Clause or a Schedule is a reference to a clause of, or a schedule to, this Agreement;

(xiv)      a  person includes its successors in title, permitted assigns and permitted transferees;

(xv)       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; and

(xvi)      a  time of day is a reference to London time.

(xvii)     the determination of the extent to which a rate is for a period equal in length to a Term shall disregard any inconsistency arising from the last day of that Term being determined pursuant to the terms of this Agreement.

(c)         Unless the contrary indication appears, any reference in any Finance Document to “Bank of America Merrill Lynch International Limited” is a reference to its successor in title Bank of America Merrill Lynch International Designated Activity Company (including, without limitation, its branches) pursuant to and with effect from the merger between Bank of America Merrill Lynch International Limited and Bank of America Merrill Lynch International Designated Activity Company that takes effect in accordance with Chapter II, Title II of Directive (EU) 2017/1132 (which repeals and codifies the Cross-Border Mergers Directive (2005/56/EC)), as implemented in the United Kingdom and Ireland. Notwithstanding anything to the contrary in any Finance Document, a transfer of rights and obligations from Bank of America Merrill Lynch International Limited to Bank of America Merrill Lynch International Designated Activity Company pursuant to such merger shall be permitted.

(d)         Unless the contrary intention appears, a reference to a month or months is a reference to a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month or the calendar month in which it is to end, except that (in relation only to the last month of any period):

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(i)          if the numerically corresponding day is not a Business Day, the period will end on the next Business Day in that month (if there is one) or the preceding Business Day (if there is not);

(ii)         if there is no numerically corresponding day in that month, that period will end on the last Business Day in that month; and

(iii)       notwithstanding sub paragraph (i) above, a period which commences on the last Business Day of a month will end on the last Business Day in the calendar month in which it is to end.

(e)

(i)          Unless expressly provided to the contrary in a Finance Document, a person who is not a party to a Finance Document has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of that Finance Document.

(ii)         Notwithstanding any term of any Finance Document, the consent of any person who is not a party to a Finance Document is not required to rescind, vary (including release or compromise any liability under) or terminate of that Finance Document at any time.

(f)         A reference to a Party will not include that Party if it has ceased to be a Party under this Agreement.

(g)         Unless the contrary intention appears:

(i)          a term used in any other Finance Document or in any notice given in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement;

(ii)         any non-payment obligation of an Obligor under the Finance Documents remains in force for so long as any payment obligation is or may be outstanding or any Commitment is in force under the Finance Documents; and

(iii)       the headings in this Agreement do not affect its interpretation.

2.          FACILITY

2.1        The Facility

Subject to the terms of this Agreement, the Lenders make available to the Borrowers a multicurrency revolving credit facility in an aggregate amount equal to the Total Commitments.

2.2        Increase

(a)         The Company may by giving prior notice to the Facility Agent no later than 30 Business Days after the effective date of a cancellation of:

(i)          the Available Commitments of a Defaulting Lender in accordance with Clause 8.8 (Right of cancellation in relation to a Defaulting Lender); or

(ii)         the Commitments of a Lender in accordance with

(A)        Clause 8.1 (Mandatory prepayment - illegality); or

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(B)        Paragraph (a) of Clause 8.7 (Right of replacement or repayment and cancellation in relation to a single Lender),

request that the Commitments be increased (and the Commitments shall be so increased) in an aggregate amount in U.S. Dollars of up to the amount of the Available Commitments or Commitments so cancelled as follows:

(iii)       the increased Commitments will be assumed by one or more Lenders or Eligible Institutions (each an Increase Lender) and each of which confirms in writing (whether in the 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 the 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 the part of the increased Commitments which it is to assume;

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

(vii)      any increase in the Total Commitments shall take effect on the date specified by the Company in the notice referred to above or any later date on which the Facility Agent executes an otherwise duly completed Increase Confirmation delivered to it by the relevant Increase Lender.

(b)         The Facility 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 Facility Agent shall only be obliged to execute an Increase Confirmation delivered to it by an Increase Lender once it is satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Lender, the completion of which the Facility Agent shall promptly notify to the Company and the Increase Lender. The Facility Agent shall promptly notify the Company and the Increase Lender upon being so satisfied.

(d)         Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective 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)         Unless the Facility Agent otherwise agrees or the increased Commitment is assumed by an existing Lender, the Increase Lender shall, on the date upon which the increase takes effect, pay to the Facility Agent (for its own account) a fee of U.S.$4,000.

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(f)         The Company shall promptly on demand pay the Facility Agent the amount of all costs and expenses (including legal fees) reasonably incurred by it in connection with any increase in Commitments under this Clause.

(g)         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.

(h)         Clause 27.4 (Limitation of responsibility of Existing Lender) shall apply mutatis mutandis in this Clause 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        Nature of a Finance Party’s rights and obligations

Unless otherwise agreed by all the Finance Parties:

(a)         the obligations of a Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations does not affect the obligations of any other Party under the Finance Documents;

(b)         no Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents;

(c)         the rights of a Finance Party under or in connection with the Finance Documents are separate and independent rights, and a 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 (d) 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 the Facility or its role under a Finance Document (including any such amount payable to the Facility Agent on its behalf) is a debt owing to the Finance Party by that Obligor; and

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

3.          PURPOSE

3.1        Loans

Each Loan may only be used in or towards the general corporate purposes of the Group (including (without limitation) the working capital requirements, financing the acquisition of assets or businesses, share buy-backs or special dividend payments) and the refinancing of amounts outstanding under the Existing Facilities Agreement.

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3.2        No obligation to monitor

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

4.          CONDITIONS PRECEDENT

4.1        Conditions precedent documents

(a)         A Request may not be given until the Facility Agent has notified the Company and the Lenders that it has received all of the documents and evidence set out in Part A of Schedule 2 (Conditions precedent documents) in form and substance satisfactory to the Facility Agent.

(b)         The Facility Agent shall notify the Company and the Lenders as soon as reasonably practicable upon being satisfied in accordance with paragraph (a) above.

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

4.2        Further conditions precedent

The obligations of each Lender to participate in any Loan are subject to the further conditions precedent that on both the date of the Request and the Utilisation Date for that Loan:

(a)         the Repeating Representations are correct in all material respects; and

(b)         no Event of Default and, in the case of a Loan other than a Rollover Loan, no Default, is outstanding or would result from the Loan.

4.3        Maximum number

(a)         Unless the Facility Agent agrees, a Request may not be given if, as a result, there would be more than 10 Loans outstanding.

(b)         Any distinct Loan made by a single Lender under Clause 6.3 (Unavailability of a currency) or Separate Loan made by a single Lender under Clause 7.1(c) (Repayment of Loans) shall not be taken into account in this Clause 4.3.

5.          UTILISATION

5.1        Giving of Requests

(a)         A Borrower may borrow a Loan by giving to the Facility Agent a duly completed Request not later than the Specified Time.

(b)         Each Request is irrevocable.

5.2        Completion of Requests

A Request will not be regarded as having been duly completed unless:

(a)         it identifies the Borrower;

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(b)         the proposed Utilisation Date is a Business Day falling within the relevant Availability Period; and

(c)         the proposed currency, amount and Term comply with this Agreement.

Only one Loan may be requested in a Request.

5.3        Amount of Loan

(a)         Unless agreed otherwise by the Facility Agent and except as provided below, the amount of a Loan must be a minimum of U.S.$5,000,000 and an integral multiple of U.S.$1,000,000, or their equivalents in accordance with Clause 6 (Optional Currencies).

(b)         The amount of a Loan may also be the balance of the relevant undrawn Commitments in respect of the Revolving Facility or such other amount as the Facility Agent or the Lenders may agree.

(c)         The amount of each Lender’s share of a Loan will be its Pro Rata Share on the proposed Utilisation Date.

5.4        Advance of Loan

(a)         The Facility Agent must promptly on the date that it receives a Request notify each Lender of the details of the requested Loan and the amount of its share in that Loan.

(b)         No Lender is obliged to participate in a Loan if as a result:

(i)          its share in the Loans would exceed its Available Commitment; or

(ii)         the Loans would exceed the Total Commitments.

(c)         If the conditions set out in this Agreement have been met, each Lender must make its share in each Loan available to the Facility Agent for the relevant Borrower on the Utilisation Date.

6.          OPTIONAL CURRENCIES

6.1        Selection

(a)         A Borrower must select the currency of a Loan in the applicable Request.

(b)         The amount of a Loan requested in an Optional Currency other than a Committed Currency must be in a minimum amount of the equivalent of U.S.$10,000,000 and an integral multiple of 1,000,000 units of that currency.

(c)         The amount of a Loan requested in a Committed Currency must be:

(i)          in the case of Sterling, £5,000,000 and an integral multiple of £1,000,000; and

(ii)         in the case of euro, €10,000,000 and an integral multiple of €1,000,000.

(d)         Unless the Facility Agent otherwise agrees, the Loans may not be denominated at any one time in more than 10 Optional Currencies.

6.2        Conditions relating to Optional Currencies

(a)         A Loan may be denominated in an Optional Currency for a Term if:

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(i)         that Optional Currency is readily available in the amount required and freely convertible into U.S. Dollars in the London interbank market on the Rate Fixing Day and the first day of that Term; and

(ii)         that Optional Currency is a Committed Currency or has been previously approved by the Facility Agent (acting on the instructions of all the Lenders).

(b)         If the Facility Agent has received a request from a Borrower for a currency to be approved as an Optional Currency (other than a Committed Currency), the Facility Agent must, within five Business Days, confirm to that Borrower:

(i)          whether or not the Lenders have given their approval; and

(ii)         if approval has been given, the minimum amount (and, if required, integral multiples) for any Loan in that currency.

6.3        Unavailability of a currency

(a)         Notwithstanding any other term of this Agreement, if before the Specified Time on any Rate Fixing Day the Facility Agent receives notice from a Lender that:

(i)          the Optional Currency (other than a Committed Currency) requested is not readily available to it in the Relevant Market in the amount and for the period required; or

(ii)         participating in a Loan in the proposed Optional Currency might contravene any law or regulation applicable to it,

the Facility Agent must give notice to the relevant Borrower to that effect promptly and in any event before the Specified Time on that day.

(b)         In this event:

(i)          that Lender must participate in a Loan in U.S. Dollars; and

(ii)         the share of that Lender in the Loan and any other similarly affected Lender(s) will be treated as a distinct Loan denominated in U.S. Dollars during that Term.

(c)         Any part of a Loan treated as a distinct Loan under this Clause will not be taken into account for the purposes of any limit on the number of Loans or currencies outstanding at any one time.

(d)         A Loan will still be treated as a Rollover Loan if it is not denominated in the same currency as the maturing Loan by reason only of the operation of this Clause.

6.4        Optional Currency equivalents

(a)         The equivalent in U.S. Dollars of a Loan or part of a Loan in an Optional Currency for the purposes of calculating:

(i)          whether any limit under this Agreement has been exceeded;

(ii)         the amount of a Loan;

(iii)       the share of a Lender in a Loan;

(iv)        the amount of any repayment of a Loan; or

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(v)         the undrawn amount of a Lender’s Commitment,

is its Dollar Amount.

(b)         The Dollar Amount of a Loan or part of a Loan means:

(i)          if the Loan is denominated in U.S. Dollars, its amount; or

(ii)         in the case of Loan denominated in an Optional Currency, its equivalent in U.S. Dollars calculated on the basis of the Facility Agent’s Dollar Rate of Exchange one Business Day before the Rate Fixing Day for that Term.

6.5        Notification

The Facility Agent must notify the Lenders and the relevant Borrower of the relevant Dollar Amount (and the applicable Facility Agent’s Dollar Rate of Exchange) promptly after they are ascertained.

7.          REPAYMENT

7.1        Repayment of Loans

(a)         Each Borrower must repay each Loan made to it in full on the last day of its Term.

(b)         Without prejudice to each Borrower’s obligation under paragraph (a) above, if one or more Loans are to be made available to a Borrower, provided that the provisions of Clause 4.2 (Further conditions precedent) are satisfied in respect of those Loans:

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

(ii)         in the same currency as the maturing Loan (unless it arose as a result of the operation of Clause 6.3 (Unavailability of a currency)); and

(iii)       in whole or in part for the purpose of refinancing the maturing Loan,

the aggregate amount of the new Loans shall be treated as if applied in or towards repayment of the maturing Loan so that:

(A)        if the amount of the maturing Loan exceeds the aggregate amount of the new Loans:

(I)         the relevant Borrower will only be required to pay an amount in cash in the relevant currency equal to that excess; and

(II)        each Lender’s participation (if any) in the new Loans shall be treated as having been made available and applied by the relevant Borrower in or towards repayment of that Lender’s participation (if any) in the maturing Loan and that Lender will not be required to make its participation in the new Loans available in cash; and

(B)        if the amount of the maturing Loan is equal to or less than the aggregate amount of the new Loans:

(I)         the relevant Borrower will not be required to make any payment in cash; and

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(II)        each Lender will be required to make its participation in the new Loans available in cash only to the extent that its participation (if any) in the new Loans exceeds that Lender’s participation (if any) in the maturing Loan and the remainder of that Lender’s participation in the new Loans shall be treated as having been made available and applied by the relevant Borrower in or towards repayment of that Lender’s participation in the maturing Loan.

(c)         At any time when a Lender becomes a Defaulting Lender, the maturity date of each of the participations of that Lender in the Loans then outstanding will be automatically extended to the Final Maturity Date and will be treated as separate Loans (the Separate Loans) denominated in the currency in which the relevant participations are outstanding.

(d)         The relevant Borrower may prepay an outstanding Separate Loan by giving two Business Days’ prior notice to the Facility Agent. The Facility 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 Terms selected by the relevant Borrower by the time and date specified by the Facility Agent (acting reasonably) and will be payable by that Borrower to the Defaulting Lender on the last day of each Term of that Loan.

(f)         The terms of this Agreement relating to Loans generally shall continue to apply to Separate Loans other than to the extent inconsistent with paragraphs (d) to (e) above, in which case those paragraphs shall prevail in respect of any Separate Loan.

7.2        Extension option

(a)         A Borrower may request, by delivery to the Facility Agent of an Extension Notice within a period of 30 Business Days before the first anniversary of the date of this Agreement, the extension of the Final Maturity Date by an additional 365 day period in accordance with this Clause 7.2 (an Extension Request).

(b)         Without prejudice to paragraph (a) above, the relevant Borrower may request, by delivery to the Facility Agent of an Extension Notice within a period of 30 Business Days before the second anniversary of the date of this Agreement, the extension of the then current Final Maturity Date:

(i)          if previously extended pursuant to paragraph (a) above, by a further 365 days (or, in relation to a Lender that has not previously agreed to an extension pursuant to paragraph (a) above, such request may be for a further 365 days or 730 days); or

(ii)         if not previously extended pursuant to paragraph (a) above, by either 365 days or by 730 days.

(c)         If an Extension Notice is delivered pursuant to paragraphs (a) or (b) above, the Facility Agent will promptly notify the Lenders to that effect. A delivered Extension Request is irrevocable.

(d)         The agreement to an extension of the Final Maturity Date pursuant to paragraphs (a) and (b) above is at the sole discretion of each Lender.

(e)         If a Lender rejects an Extension Request or does not respond to an Extension Request by the date falling 20 Business Days after the date the Extension Request is delivered to the Facility Agent:

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(i)          (if requested in the sole discretion of the relevant Borrower) the relevant Lender must, with effect from:

(A)        the original Final Maturity Date;

(B)        the extended Final Maturity Date (as applicable); or

(C)        (in each case) such earlier date as the Lender may agree,

assign, transfer or novate all of its rights and obligations under this Agreement at par value to a bank or financial institution which has indicated its willingness to accept such an assignment, transfer or novation chosen by the relevant Borrower, in accordance with and subject to the conditions of Clause 27 (Changes to the parties)  provided that the relevant Lender shall have no obligation to find any such replacement bank or financial institution; or

(ii)         on the original Final Maturity Date or the extended Final Maturity Date (as applicable), the relevant Borrower shall prepay that Lender’s participation in any Loan and that Lender’s Commitment shall be cancelled on the original Final Maturity Date or the extended Final Maturity Date (as applicable).

8.          PREPAYMENT AND CANCELLATION

8.1        Mandatory prepayment - illegality

(a)         A Lender must notify the Company and the Facility Agent promptly if it becomes aware that it is unlawful in any applicable jurisdiction for that Lender to perform any of its obligations under a Finance Document or to fund or maintain its share in any Loan.

(b)         After notification under paragraph (a) above:

(i)          to the extent that the Lender’s participation has not been transferred pursuant to paragraph (d) of Clause 8.7 (Right of replacement or repayment and cancellation in relation to a single Lender), each Borrower must repay or prepay the share of that Lender in each Loan utilised by it on the date specified in paragraph (c) below and that Lender’s corresponding Commitment shall be cancelled in the amount of the participations repaid; and

(ii)         the Available Commitment of that Lender will be immediately cancelled.

(c)         The date for repayment or prepayment of a Lender’s share in a Loan will be the earlier of:

(i)          the date specified by the Lender in the notice delivered to the Facility Agent (being no earlier than the last day of any applicable grace period permitted by law); and

(ii)         the last day of the current Term of that Loan.

8.2        Mandatory prepayment - change of control

(a)         The Company must promptly notify the Facility Agent if it becomes aware of any person or group of persons acting in concert which acquires control of the Company.

(b)         After notification under paragraph (a) above, each Lender may by notice to the Company:

(i)          cancel its Commitments; and

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(ii)         demand that its participation in all outstanding Loans, together with accrued interest and all other amounts accrued under the Finance Documents be immediately due and payable.

Any such notice will take effect in accordance with its terms.

(c)         In paragraph (a) above:

(i)          control has the meaning given to it in sections 450 and 451 of the Corporation Tax Act 2010; and

(ii)         acting in concert has the meaning given to it in the City Code on Takeovers and Mergers.

8.3        Mandatory prepayment – effectiveness of Finance Documents

(a)         Unless the Facility Agent has already been so notified by another Obligor, each Obligor must notify the Facility Agent promptly if either:

(i)          it is or becomes unlawful for any Obligor (other than the Company) to perform any of its obligations under the Finance Documents; or

(ii)         any Obligor (other than the Company) repudiates a Finance Document or purports to repudiate a Finance Document.

(b)         After notification under paragraph (a) above:

(i)          the Obligors must repay or prepay each Loan on the date specified in paragraph (c) below; and

(ii)         the Commitments will be immediately cancelled.

(c)         The date for repayment or prepayment of a Lender’s share in a Loan will be:

(i)          within three Business Days following receipt by the Company of notice from the Facility Agent; or

(ii)         if allowed by the relevant law, the last day of the current Term of that Loan.

8.4        Voluntary prepayment

(a)         The Company may, by giving not less than five Business Days’ prior notice to the Facility Agent, prepay (or ensure that the relevant Borrower prepays) any Loan made to the relevant Obligor at any time in whole or in part.

(b)         A prepayment of part of a Loan must be in a minimum amount of U.S.$5,000,000 (or its equivalent) and an integral multiple of U.S.$1,000,000 (or its equivalent).

8.5        Automatic cancellation

The unutilised Commitment of each Lender will be automatically cancelled in full at the close of business on the last day of the relevant Availability Period.

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8.6        Voluntary cancellation

(a)         The Company may, by giving not less than five Business Days’ prior notice to the Facility Agent, cancel the unutilised amount of the Commitments in whole or in part.

(b)         Partial cancellation of the Commitments must be in a minimum amount of U.S.$5,000,000 (or its equivalent) and an integral multiple of U.S.$1,000,000 (or its equivalent).

(c)         Any cancellation in part will be applied against the Commitment of each Lender pro rata.

8.7        Right of replacement or repayment and cancellation in relation to a single Lender

(a)         If:

(i)          any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 12.2 (Tax gross up);

(ii)         a Borrower receives notification under Clause 12.4 (Treaty Challenge) in respect of a Lender; or

(iii)       any Lender claims indemnification from the Company under Clause 12.3 (Tax Indemnity) or 13.1 (Increased costs),

the Company may, while the circumstance giving rise to the requirement for that increase or indemnification continues, give notice to the Facility Agent requesting prepayment and cancellation in respect of that Lender or give the Facility Agent notice of its intention to replace that Lender in accordance with paragraph (d) below.

(b)         After notification under paragraph (a) above:

(i)          each Borrower must repay or prepay that Lender’s share in each Loan drawn by that Borrower on the date specified in paragraph (c) below; and

(ii)         the Commitments of that Lender will be immediately cancelled and reduced to zero.

(c)         The date for repayment or prepayment of a Lender’s share in a Loan will be the last day of the current Term for that Loan or, if earlier, the date specified by the Company in its notification.

(d)         If:

(i)          any of the circumstances set out in paragraph (a) above apply to a Lender;

(ii)         an Obligor becomes obliged to pay any amount in accordance with Clause 8.1 (Mandatory prepayment – Illegality) to any Lender; or

(iii)       a Lender gives notification to the Facility Agent under Clause 11.3 (Market disruption),

the Company may, on five Business Days’ prior notice to the Facility Agent and that Lender, replace that Lender by requiring that Lender to (and, to the extent permitted by law, that Lender shall) transfer pursuant to Clause ‎27 (Changes to the Parties) all (and not part only) of its rights and obligations under this Agreement to an Eligible Institution which confirms its willingness to assume and does assume all the obligations of the transferring Lender in accordance with Clause ‎27 (Changes to the Parties) for a purchase price in cash payable at the time of the transfer in an amount equal to the outstanding principal amount of such Lender’s participation in the outstanding Loans and all accrued interest (to the extent that the

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Facility Agent has not given a notification under Clause ‎27.13 (Pro rata interest settlement)), Break Costs and other amounts payable in relation thereto under the Finance Documents.

(e)         The replacement of a Lender pursuant to paragraph (d) above shall be subject to the following conditions:

(i)          the Company shall have no right to replace the Facility Agent;

(ii)         neither the Facility Agent nor any Lender shall have any obligation to find a replacement Lender; and

(iii)       in no event shall the Lender replaced under paragraph (d) above be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents; and

(iv)        the Lender shall only be obliged to transfer its rights and obligations pursuant to paragraph (d) above once it is satisfied that it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to that transfer.

8.8        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 Facility Agent ten Business Days’ notice of cancellation of the Available Commitment of that Lender.

(b)         On the notice referred to in paragraph (a) above becoming effective, the Available Commitment of the Defaulting Lender shall immediately be reduced to zero.

(c)         The Facility Agent shall as soon as practicable after receipt of a notice referred to in paragraph (a) above, notify all the Lenders.

8.9        Reborrowing of Loans

Any voluntary prepayment of a Loan may be reborrowed on the terms of this Agreement. Any mandatory or involuntary prepayment of a Loan may not be reborrowed.

8.10      Miscellaneous provisions

(a)         Any notice of prepayment and/or cancellation under this Agreement is irrevocable and must specify the relevant date(s) and the affected Loans and Commitments. The Facility Agent must notify the Lenders promptly of receipt of any such notice.

(b)         All prepayments under this Agreement must be made with accrued interest on the amount prepaid. No premium or penalty is payable in respect of any prepayment except for Break Costs.

(c)         The Facility Agent may agree a shorter notice period for a voluntary prepayment or a voluntary cancellation.

(d)         No prepayment or cancellation is permitted except in accordance with the express terms of this Agreement.

(e)         Subject to Clause 2.2 (Increase), no amount of the Total Commitments cancelled under this Agreement may subsequently be reinstated.

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(f)         If all or part of a Loan is repaid or prepaid and is not available for redrawing (other than by operation of Clause 4.2 (Further conditions precedent), an amount of the Commitments (equal to the Dollar Amount of the amount of the Loan which is repaid or prepaid) will be deemed to be cancelled on the date of repayment or prepayment. Any cancellation under this paragraph (f) shall reduce the Commitments of the Lenders rateably.

8.11      Application of prepayments

Any prepayment of a Loan pursuant to Clause 8.4 (Voluntary prepayment) shall be applied pro rata to each Lender’s participation in that Loan.

9.          INTEREST

9.1        Financial Definitions

In this Agreement:

Consolidated Cash and Cash Equivalents means, at any time, the aggregate of the following:

(a)         cash in hand or on deposit with any Acceptable Bank, which, in either case, is not subject to any Security Interest and is readily remittable to the U.K. or capable of being applied against Consolidated Total Borrowings;

(b)         certificates of deposit, maturing within one year after the relevant date of calculation, issued by an Acceptable Bank;

(c)         any investment in marketable obligations issued or guaranteed by the government of the United States of America or the U.K. or by an instrumentality or agency of the government of the United States of America or the U.K. having an equivalent credit rating;

(d)         any investment in debt instruments permitting cash withdrawals on not more than one month’s notice and which have a rating of A or higher by Standard and Poor’s or Fitch or A2 or higher by Moody’s;

(e)         open market commercial paper:

(i)          for which a recognised trading market exists;

(ii)         issued in the United States of America or the U.K.;

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

(iv)        which has a credit rating of either A-1 by Standard & Poor’s or Fitch or P-1 by Moody’s, or, if no rating is available in respect of the commercial paper or indebtedness, the issuer of which has, in respect of its long term debt obligations, an equivalent rating;

(f)         debt securities eligible for rediscount at the Bank of England and accepted by an Acceptable Bank;

(g)         any cash deposited as collateral against any Consolidated Total Borrowings up to the maximum amount of those Consolidated Total Borrowings; or

(h)         any other instrument, security or investment approved by the Majority Lenders,

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in each case, to which any member of the Group is beneficially entitled at that time and which is capable of being applied against Consolidated Total Borrowings.

Any amount outstanding in a currency other than U.S. Dollars is to be taken into account at its U.S. Dollar equivalent calculated on the basis of:

(i)          the Facility Agent’s Dollar Rate of Exchange; or

(ii)         if the amount is to be calculated on the last day of a financial period of the Company, the rate of exchange used by the Company in its financial statements for that last day of the financial period.

Consolidated EBITDA means the consolidated net pre-taxation profits of the Group for a Measurement Period, adjusted by:

(a)         adding back Consolidated Net Interest Payable;

(b)         adding back any other finance costs included in consolidated net pre-taxation profits;

(c)         taking no account of any exceptional or extraordinary item;

(d)         adding back the profit and loss effect of any adjustment to the carrying value of inventory or any other asset or liability arising from purchase accounting adjustments, to the extent that any such adjustment (in whole or part) is included in consolidated net pre-taxation profits;

(e)         adding back depreciation and amortisation;

(f)         adding back any charges in respect of share based payments; and

(g)         including the EBITDA (calculated on the same basis as Consolidated EBITDA, mutatis mutandis) of any member of the Group treated as held for sale.

Consolidated Interest Payable means all interest and recurring financing charges including acceptance commission, commitment fees (but excluding for the avoidance of doubt any one-off or up-front fees), the interest element of rental payments on finance or capital leases (whether, in each case, paid or payable) and any other finance costs having the nature of interest included in consolidated pre-taxation profits, incurred by the Group in effecting, servicing or maintaining Consolidated Total Borrowings during a Measurement Period, after taking into account any amount relating to the current Measurement Period in respect of any interest rate hedging transactions in respect of the Consolidated Total Borrowings whether or not designated as IAS 39 hedges.

Consolidated Net Interest Payable means Consolidated Interest Payable less all interest and financing charges received or receivable by the Group during the relevant Measurement Period.

Consolidated Total Borrowings means, in respect of the Group, at any time the aggregate of the following:

(a)         the outstanding principal amount of any moneys borrowed;

(b)         the outstanding principal amount of any acceptance under any acceptance credit;

(c)         the outstanding principal amount of any bond, note, debenture, loan stock or other similar instrument;

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(d)         the capitalised element of indebtedness under a finance or capital lease as defined in accordance with accounting principles applied in preparation of the Original Financial Statements;

(e)         the outstanding principal amount of all moneys owing in connection with the sale or discounting of receivables (otherwise than on a non recourse basis);

(f)         the outstanding principal amount of any indebtedness arising from any deferred payment agreements arranged primarily as a method of raising finance or financing the acquisition of an asset;

(g)         any fixed or minimum premium due and payable on the repayment or redemption of any instrument referred to in paragraph (c) above;

(h)         the outstanding principal amount of any indebtedness arising in connection with any other transaction (including any forward sale or purchase agreement) which has the commercial effect of a borrowing;

(i)          the outstanding principal amount of any indebtedness of any person who is not a member of the Group of a type referred to in paragraphs (a) to (h) above which is the subject of a guarantee, indemnity or similar assurances against financial loss provided by a member of the Group; and

(j)          the value of any assets or liabilities arising from the mark-to-market valuation of any derivative financial instruments in respect of currency hedging on Consolidated Total Borrowings which gives rise to balance sheet assets or liabilities.

Any amount outstanding in a currency other than U.S. Dollars is to be taken into account at its U.S. Dollar equivalent calculated on the basis of:

(i)          the Facility Agent’s Dollar Rate of Exchange; or

(ii)         if the amount is to be calculated on the last day of a financial period of the Company, the rate of exchange used by the Company in its financial statements for that last day of the financial period. However, if by using this rate the Company does not comply with any term of this Clause 9, the Company may apply the average rate of exchange used by the Company in its financial statements for that period instead.

Consolidated Total Net Borrowings means at any time Consolidated Total Borrowings less Consolidated Cash and Cash Equivalents.

Measurement Period means a period of 12 months ending on a Testing Date.

Testing Date means the last day of a financial year or financial half year of the Company.

9.2        Interpretation of financial definitions

(a)         Except as provided to the contrary in this Agreement, an accounting definition used in this Clause is to be construed in accordance with the accounting principles applied in accordance with the Original Financial Statements.

(b)         No item shall be credited or deducted more than once in any calculation under this Clause.

(c)         For the purpose of calculation of the ratio of Consolidated Total Net Borrowings to Consolidated EBITDA under “Column 1” pursuant to Clause 9.5 (Margin adjustments) only:

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(i)          there shall be included in determining Consolidated EBITDA for any Measurement Period (including that portion thereof occurring prior to the relevant acquisition) the EBITDA (calculated on the same basis as Consolidated EBITDA, mutatis mutandis) of any material person, property, business or fixed asset acquired by any member of the Group during such Measurement Period as if they were acquired as of the first day of that Measurement Period; and

(ii)         there shall be excluded in determining Consolidated EBITDA for any Measurement Period the EBITDA (calculated on the same basis as Consolidated EBITDA, mutatis mutandis) of any material person, property, business or fixed asset sold by any member of the Group during such Measurement Period (including that portion thereof occurring prior to the relevant disposal) as if they were disposed of as of the first day of that Measurement Period.

9.3        Calculation of interest

The rate of interest on each Loan for each Term is the percentage rate per annum equal to the aggregate of the applicable:

(a)         Margin; and

(b)         LIBOR or (in the case of a Loan denominated in euro) EURIBOR.

9.4        Payment of interest

Except where it is provided to the contrary in this Agreement, each Borrower must pay accrued interest on each Loan made to it on the last day of each Term and also, if the Term is longer than six months, on the dates falling at six monthly intervals after the first day of that Term.

9.5        Margin adjustments

(a)         The initial Margin will be 0.275 per cent. per annum.

(b)         Subject to the other provisions of this Clause, the Margin will, from the delivery of a Compliance Certificate pursuant to Clause 18.2 (Compliance Certificate), be calculated by reference to the table below:

 

 

Column 1
Ratio of Consolidated Total Net Borrowings to
Consolidated EBITDA

Column 2
Margin (per cent. per annum)

Greater than 3.25:1

0.75

Less than or equal to 3.25:1 but greater than 2.50:1

0.60

Less than or equal to 2.50:1 but greater than 1.75:1

0.45

Less than or equal to 1.75:1

0.275

 

(c)         For so long as:

(i)          the Company is in default of its obligation under this Agreement to provide a Compliance Certificate; or

(ii)         an Event of Default is outstanding,

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the Margin will be the highest rate set out in paragraph (b) above.

9.6        Effect of adjustments

Any change to the Margin under Clause 9.5 (Margin adjustments) will take effect in relation to a Loan on the second Business Day after delivery of the relevant Compliance Certificate.

9.7        Interest on overdue amounts

(a)         If an Obligor fails to pay any amount payable by it under the Finance Documents on its due date, it must immediately on demand by the Facility Agent pay interest on the overdue amount from its due date up to the date of actual payment, both before and after judgment.

(b)         Interest on an overdue amount is payable at a rate determined by the Facility Agent to be 1 per cent. per annum above the rate which would have been payable if the overdue amount had, during the period of non payment, constituted a Loan to which the overdue amount relates in the currency of the overdue amount. For this purpose, the Facility Agent may (acting reasonably):

(i)          select successive Terms of any duration of up to three months; and

(ii)         determine the appropriate Rate Fixing Day for that Term.

(c)         Notwithstanding paragraph (b) above, if the overdue amount is a principal amount of a Loan and becomes due and payable prior to the last day of its current Term, then:

(i)          the first Term for that overdue amount will be the unexpired portion of that Term; and

(ii)         the rate of interest on the overdue amount for that first Term will be 1 per cent. per annum above the rate then payable on that Loan.

After the expiry of the first Term for that overdue amount, the rate on the overdue amount will be calculated in accordance with paragraph (b) above.

(d)         Default interest (if unpaid) on an overdue amount will be compounded with that overdue amount at the end of each of its Terms but will remain immediately due and payable.

9.8        Notification of rates of interest

(a)         The Facility Agent must promptly on the date determined notify each relevant Party of the determination of a rate of interest under this Agreement.

(b)         The Facility Agent shall promptly notify the relevant Borrower of each Funding Rate relating to a Loan.

10.        TERMS

10.1      Selection of Terms

(a)         Each Loan has one Term only.

(b)         A Borrower must select the Term for a Loan in the relevant Request for that Loan.

(c)         Subject to the other provisions in this Clause 10, a Borrower may select the Term for a Loan, which may be two or four weeks or one, two, three or six months, or any other period agreed by that Borrower and the Lenders.

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10.2      No overrunning the Final Maturity Date

If a Term would otherwise overrun the relevant Final Maturity Date, it will be shortened so that it ends on the relevant Final Maturity Date.

10.3      Non‑Business Days

If a Term would otherwise end on a day which is not a Business Day, that Term 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).

10.4      Other adjustments

The Facility Agent and the Company may enter into such other arrangements as they may agree for the adjustment of Terms and the consolidation and/or splitting of Loans.

10.5      Notification

The Facility Agent must notify each relevant Party of the duration of each Term promptly after ascertaining it.

11.        CHANGES TO THE CALCULATION OF INTEREST

11.1      Unavailability of Screen Rate

(a)         Interpolated Screen Rate: If no Screen Rate is available for LIBOR or, if applicable, EURIBOR for the Term of a Loan, the applicable LIBOR or EURIBOR shall be the Interpolated Screen Rate for a period equal in length to the Term of that Loan.

(b)         Reference Bank Rate: If no Screen Rate is available for LIBOR or, if applicable, EURIBOR for:

(i)          the currency of a Loan; or

(ii)         the Term of a Loan and it is not possible to calculate the Interpolated Screen Rate,

the applicable LIBOR or EURIBOR shall be the Reference Bank Rate as of the Specified Time for the currency of that Loan and for a period equal in length to the Term of that Loan.

(c)         Cost of funds: If paragraph (b) above applies but no Reference Bank Rate is available for the relevant currency or Term there shall be no LIBOR or EURIBOR for that Loan and Clause 11.4 (Cost of funds) shall apply to that Loan for that Term.

11.2      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 on a Rate Fixing 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 (local time) on the Rate Fixing Day none or only one of the Reference Banks supplies a quotation, there shall be no Reference Bank Rate for the relevant Term.

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11.3      Market disruption

If before close of business in London on the Rate Fixing Day for the relevant Term, the Facility Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed 40 per cent. of that Loan) that the cost to it of funding its participation in that Loan from the wholesale market for the relevant currency would be in excess of LIBOR or, if applicable, EURIBOR then Clause 11.4 (Cost of funds) shall apply to that Loan for the relevant Term.

11.4      Cost of funds

(a)         If this Clause 11.4 applies, the rate of interest on each Lender’s share of the relevant Loan for the relevant Term shall be the percentage rate per annum which is the sum of:

(i)          the Margin; and

(ii)         the rate notified to the Facility Agent by that Lender as soon as practicable, and in any event before the date on which interest is due to be paid in respect of that Term, to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in that Loan from whatever source it may reasonably select.

(b)         If this Clause 11.4 applies and the Facility Agent or the Company so requires, the Facility 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 11.4 applies pursuant to Clause 11.3 (Market disruption) and:

(i)          a Lender’s Funding Rate is less than LIBOR or, in relation to any Loan in euro, EURIBOR; or

(ii)         a Lender does not supply a quotation by the time specified in paragraph (a)(ii) above,

the cost to that lender of funding its participation in that loan for that Term shall be deemed, for the purposes of paragraph (a) above, to be LIBOR or, in relation to a Loan in euro, EURIBOR.

(e)         If this Clause 11.4 applies pursuant to Clause 11.1 (Unavailability of Screen Rate) 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.

11.5      Notification to Company

If Clause 11.4 (Cost of funds) applies the Facility Agent shall, as soon as is practicable, notify the Company.

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11.6      Confidentiality of Funding Rates and Reference Bank Quotations

(a)         The Facility Agent and each Obligor agree to keep each Funding Rate (and, in the case of the Facility Agent, each Reference Bank Quotation) confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (b), (c) and (d) below.

(b)         The Facility Agent may disclose:

(i)          any Funding Rate (but not, for the avoidance of doubt, any Reference Bank Quotation) to an Obligor pursuant to Clause 9.8 (Notification of rates of interest); and

(ii)         any Funding Rate or any Reference Bank Quotation to any person appointed by it to provide administration services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide those services if the service provider to whom that information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Facility Agent and the relevant Lender or Reference Bank, as the case may be.

(c)         The Facility Agent may disclose any Funding Rate or any Reference Bank Quotation, and each Obligor may disclose any Funding Rate, to:

(i)          any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives if any person to whom that Funding Rate or Reference Bank Quotation is to be given pursuant to this paragraph (i) is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of that Funding Rate or Reference Bank Quotation or is otherwise bound by requirements of confidentiality in relation to it;

(ii)         any person to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation if the person to whom that Funding Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Facility Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances;

(iii)       any person to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Facility Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances; and

(iv)        any person with the consent of the relevant Lender or Reference Bank, as the case may be.

(d)         The Facility Agent’s obligations in this Clause 11.6 relating to Reference Bank Quotations are without prejudice to its obligations to make notifications under Clause 9.8 (Notification of rates of interest) provided that (other than pursuant to paragraph (b)(i) above) the Facility

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Agent shall not include the details of any individual Reference Bank Quotation as part of any such notification.

(e)         The Facility Agent and each Obligor acknowledge that each Funding Rate (and, in the case of the Facility Agent, each Reference Bank Quotation) is or may be price-sensitive information and that its use may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and the Facility Agent and each Obligor undertake not to use any Funding Rate or, in the case of the Facility Agent, any Reference Bank Quotation for any unlawful purpose.

(f)         The Facility Agent and each Obligor agree (to the extent permitted by law and regulation) to inform the relevant Lender or Reference Bank, as the case may be:

(i)          of the circumstances of any disclosure made pursuant to paragraph (c)(ii) above except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and

(ii)         upon becoming aware that any information has been disclosed in breach of this Clause 11.6.

12.        TAXES

12.1      General

In this Agreement:

Borrower DTTP Filing  means an HMRC Form DTTP2 duly completed and filed by the relevant Borrower, which:

(a)         where it relates to a Treaty Lender that is an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated opposite that Lender’s name in Schedule 1 (Original Lenders), and:

(i)          where the Borrower is the Company, is filed with HMRC within 30 days of the date of this Agreement; or

(ii)         where the Borrower is an Additional Borrower, is filed with HMRC within 30 days of the date on which that Borrower becomes an Additional Borrower; or

(b)         where it relates to a Treaty Lender that is a New Lender or an Increase Lender, contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the relevant documentation which it executes on becoming a Party as a Lender, and:

(i)          where the Borrower is a Borrower as at the date on which that Treaty Lender becomes a Party as a Lender, is filed with HMRC within 30 days of the Transfer Date or the Increase Date; or

(ii)         where the Borrower is not a Borrower as at the date on which that Treaty Lender becomes a Party as a Lender, is filed with HMRC within 30 days of the date on which that Borrower becomes an Additional Borrower.

CTA means the Corporation Tax Act 2009.

HMRC means Her Majesty’s Revenue & Customs.

Increase Date has the meaning given to that term in the relevant Increase Confirmation.

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ITA means the Income Tax Act 2007.

Qualifying Lender means:

(a)         a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and is:

(i)          a Lender:

(A)        which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Finance Document and is within the charge to U.K. corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA; or

(B)        in respect of an advance made under a Finance Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made and within the charge to U.K. corporation tax as respects any payments of interest made in respect of that advance; or

(ii)         a Lender which is:

(A)        a company resident in the U.K. for U.K. tax purposes;

(B)        a partnership each member of which is:

(I)         a company so resident in the U.K.; or

(II)        a  company not so resident in the U.K. which carries on a trade in the U.K. through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

(C)        a company not so resident in the U.K. which carries on a trade in the U.K. through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company; or

(iii)       a Treaty Lender; or

(b)         a Lender which is a building society (as defined for the purpose of section 880 of the ITA) making an advance under a Finance Document.

Tax Confirmation means a confirmation by a Lender that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:

(a)         a company resident in the U.K. for U.K. tax purposes;

(b)         a partnership each member of which is:

(i)          a company so resident in the U.K.; or

(ii)         a company not so resident in the U.K. which carries on a trade in the U.K. through a permanent establishment and which brings into account in computing its chargeable

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profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

(c)         a company not so resident in the U.K. which carries on a trade in the U.K. through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.

Tax Credit means a credit against any Tax or any 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.

Transfer Date has the meaning given to that term in Clause 1.1 (Definitions).

Treaty Challenge means a withdrawal or dispute of, or challenge to, the Treaty Lender status of a Lender by a relevant tax authority, on the basis that a principal purpose test is failed, the Lender is not beneficially entitled to interest payable to that Lender under a Finance Document, or the Lender is not a qualified person under a limitation of benefits clause.

Treaty Lender means a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and which:

(a)         is treated as a resident of a Treaty State for the purposes of the Treaty;

(b)         does not carry on a business in the U.K. through a permanent establishment with which that Lender’s participation in the Loan is effectively connected; and

(c)         meets all other conditions in the relevant Treaty for full exemption from Tax imposed by the U.K. on interest, except that for this purpose it shall be assumed that the following are satisfied:

(i)          any condition which relates (expressly or by implication) to there not being a special relationship between a Borrower and a Lender or between both of them and another person, or to the amounts or terms of any Loan or the Finance Documents; and

(ii)         any necessary procedural formalities.

Treaty State means a jurisdiction having a double taxation agreement (a Treaty) with the U.K. which makes provision for full exemption from tax imposed by the U.K. on interest.

U.K. Non-Bank Lender means, where a Lender becomes a Party after the day on which this Agreement is entered into, a Lender which gives a Tax Confirmation in the Transfer Certificate or Increase Confirmation which it executes on becoming a Party.

12.2      Tax gross up

(a)         Each Obligor must make all payments to be made by it under the Finance Documents without any Tax Deduction, unless a Tax Deduction is required by law.

(b)         If:

(i)          a Lender is not, or ceases to be, a Qualifying Lender; or

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(ii)         an Obligor or a Lender is aware that an Obligor must make a Tax Deduction (or that there is a change in the rate or the basis of a Tax Deduction),

it must promptly notify the Facility Agent. The Facility Agent must then promptly notify the affected Parties.

(c)         Except as provided below, if a Tax Deduction is required by law to be made by an Obligor or the Facility Agent, the amount of the payment due from the Obligor will be increased to an amount which (after making the Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.

(d)         An Obligor is not required to make an increased payment under paragraph (c) above by reason of a Tax Deduction 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 in respect of that payment, unless the altered status results from any change after the later of the date of this Agreement or the date that such Lender becomes a party to this Agreement in (or in the interpretation, administration, or application of) any law or Treaty agreement or any published practice or concession of any relevant taxing authority; or

(ii)         the relevant Lender is a Qualifying Lender solely by virtue of paragraph (a)(ii) of the definition of Qualifying Lender; and

(A)        an officer of HMRC has given (and not revoked) a direction (a Direction) under section 931 of the ITA which relates to the payment and that Lender has received from the Obligor making the payment or from the Company a certified copy of that Direction; and

(B)        the payment could have been made to the Lender without any Tax Deduction if that Direction had not been made; or

(iii)       the relevant Lender is a Qualifying Lender solely by virtue of paragraph (a)(ii) of the definition of Qualifying Lender and:

(A)        the relevant Lender has not given a Tax Confirmation to the Company; and

(B)        the payment could have been made to the Lender without any Tax Deduction if the Lender had given a Tax Confirmation to the Company, on the basis that the Tax Confirmation would have enabled the Company to have formed a reasonable belief that the payment was an “excepted payment” for the purpose of section 930 of the ITA; or

(iv)        the relevant Lender is a Treaty Lender and the Obligor is able to demonstrate that (subject to completion of any necessary formalities by the relevant Borrower) the Tax Deduction would not have been made if the Lender had complied with its obligations under paragraph (g) or (h) (as applicable) below.

(e)         If an Obligor is required to make a Tax Deduction, it must make the minimum Tax Deduction and must make any payment required in connection with that Tax Deduction within the time allowed by law.

(f)         Within 30 days of making either a Tax Deduction or a payment required in connection with a Tax Deduction, the Obligor must deliver to the Facility Agent for the relevant Finance Party

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entitled to the payment a statement under section 975 of the ITA or other evidence satisfactory to that Finance Party (acting reasonably) that the Tax Deduction has been made or (as applicable) the appropriate payment has been paid to the relevant taxing authority.

(g)

(i)          Subject to paragraph (ii) below, a Treaty Lender must co-operate with each Obligor which makes a payment to which that Treaty Lender is entitled in completing any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction.

(ii)

(A)        A Treaty Lender which is an Original Lender and that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence opposite its name in Schedule 1 (Original Lenders); and

(B)        a Treaty Lender which is not an Original Lender and that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence in the documentation which it executes on becoming a Party as a Lender,

and, having done so, that Lender shall be under no obligation pursuant to paragraph (i) above.

(h)         If a Lender has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with paragraph (g)(ii) above and:

(i)          the relevant Borrower making a payment to that Lender has not made a Borrower DTTP Filing in respect of that Lender; or

(ii)         the relevant Borrower making a payment to that Lender has made a Borrower DTTP Filing in respect of that Lender but:

(A)        that Borrower DTTP Filing has been rejected by HMRC; or

(B)        HMRC has not given the relevant Borrower authority to make payments to that Lender without a Tax Deduction within 60 days of the date of the Borrower DTTP Filing,

and in each case, the relevant Borrower has notified that Lender in writing, that Lender and the relevant Borrower shall co-operate in completing any additional procedural formalities necessary for the relevant Borrower to obtain authorisation to make that payment without a Tax Deduction.

(i)          If a Lender has not confirmed its scheme reference number and jurisdiction of tax residence in accordance with paragraph (g)(ii) above, no Obligor shall make a Borrower DTTP Filing or file any other form relating to the HMRC DT Treaty Passport scheme in respect of that Lender’s Commitment or its participation in any Loan unless the Lender otherwise agrees.

(j)          The relevant Borrower shall, promptly on making a Borrower DTTP Filing, deliver a copy of that Borrower DTTP Filing to the Facility Agent for delivery to the relevant Lender.

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(k)         A U.K. Non-Bank Lender which is an Original Lender gives a Tax Confirmation to the Company by entering into this Agreement.

(l)          A U.K. Non-Bank Lender shall promptly notify the Company and the Facility Agent if there is any change in the position from that set out in the Tax Confirmation.

12.3      Tax indemnity

(a)         Except as provided below, the Company must indemnify a Finance Party against any loss, liability or cost which that Finance Party suffers, or has suffered, directly for or on account of Tax by that Finance Party in respect of a Finance Document.

(b)         Paragraph (a) above does not apply to:

(i)          any Tax assessed on a Finance Party if that Tax is imposed on or calculated by reference to the net income received or receivable by that Finance Party. However, any payment deemed to be received or receivable, including any amount treated as income but not actually received by the Finance Party, such as a Tax Deduction, will not be treated as net income received or receivable for this purpose;

(ii)         any Tax arising under, or attributable to the implementation or application of, or compliance with, the bank levy imposed by the U.K. Government as set out in the Finance Act 2011 as amended from time to time, or any levy or Tax of a similar nature imposed in, or by the government of, any jurisdiction, or any other law or regulation which implements such bank levy or any levy or Tax of a similar nature imposed in, or by the government of, any jurisdiction, or any Tax imposed on a Finance Party by virtue of its status as a bank;

(iii)       any amount compensated for under Clause 12.2 (Tax gross up) above, or which would have been compensated for under Clause 12.2 (Tax gross up) above but for an exception to that Clause; or

(iv)        any loss, liability or cost that relates to a FATCA Deduction required to be made by a party.

(c)         A Finance Party making, or intending to make, a claim under paragraph (a) above must promptly notify the Company of the event which gives, or has given, rise to the claim.

(d)         A Finance Party shall, on receiving payment from the Company under this Clause 12.3, notify the Facility Agent.

12.4      Treaty Challenge

A Treaty Lender shall as promptly as practicable notify each Borrower on becoming aware of a Treaty Challenge or of a reasonably foreseeable Treaty Challenge. If a Borrower receives such notification from a Lender it shall notify the other Obligors. Similarly, the Obligors shall as promptly as practicable notify each Borrower on becoming so aware in respect of any Treaty Lender.

12.5      Tax Credit

(a)         If an Obligor makes a Tax Payment and the relevant Finance Party determines that:

(i)          a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and

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(ii)         the relevant Finance Party has used that Tax Credit,

the Finance Party must pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after tax position as it would have been in if the Tax Payment had not been required to be made by the Obligor.

(b)         If an Obligor makes a Tax Payment and the relevant Finance Party is a Treaty Lender, that Finance Party shall, in the ordinary course of its dealings with HMRC, take reasonable steps to obtain from HMRC payment of any amounts to which it may be entitled under the terms of any applicable Treaty in respect of any Tax Deduction from payments to it under any Finance Document and that Finance Party shall pay to the Obligor an amount equal to any such payment received from HMRC (after deducting any reasonable expenses incurred in obtaining it).

(c)         No Finance Party shall be obliged to take any such steps as a referred to in paragraph (b) above which may prejudice its right to obtain any other relief or allowance otherwise available to it or to disclose to any party to a Finance Document any information regarding its Tax affairs and computations.

12.6      Lender Status Confirmation

Each Lender which is not an Original Lender shall indicate, in the documentation which it executes on becoming a Party as a Lender, which of the following categories it falls in:

(a)         not a Qualifying Lender;

(b)         a Qualifying Lender (other than a Treaty Lender); or

(c)         a Treaty Lender.

If such a Lender fails to indicate its status in accordance with this Clause 12.6 then that Lender shall be treated for the purposes of this Agreement (including by each Obligor) as if it is not a Qualifying Lender until such time as it notifies the Facility Agent which category applies (and the Facility Agent, upon receipt of such notification, shall inform the Company). For the avoidance of doubt, the documentation which a Lender executes on becoming a Party as a Lender shall not be invalidated by any failure of a Lender to comply with this Clause 12.6.

12.7      Stamp taxes

The Company must pay and indemnify each Finance Party against any U.K. stamp duty, U.K. registration Tax or other similar U.K. Tax payable in connection with the entry into, performance or enforcement of any Finance Document, except for any such U.K. Tax payable in connection with the entry into of a Transfer Certificate by a Lender.

12.8      Value added taxes

(a)         All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply and, accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party).

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(b)         If VAT is or becomes chargeable on any supply made by any Finance Party (the Supplier) to any other Finance Party (the Recipient) under a Finance Document, and any Party other than the Recipient (the Relevant Party) is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):

(i)          (where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and

(ii)         (where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.

(c)         Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.

(d)         Any reference in this Clause 12.8 to any Party shall, at any time when such Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated as making the supply, or (as appropriate) receiving the supply, under the grouping rules as provided for in Article 11 of Council Directive 2006/112/EC (or as implemented by a Member State) or the Value Added Tax Act 1994, as may be amended or substituted from time to time.

(e)         In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party’s VAT registration and such other information as is reasonably requested in connection with such Party’s VAT reporting requirements in relation to such supply.

12.9      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 and the Facility Agent whether it is:

(A)        a FATCA Exempt Party; or

(B)        not a FATCA Exempt Party;

(ii)         supply to that other Party and the Facility Agent such forms, documentation and other information relating to its status under FATCA (including its applicable passthru payment percentage or other information required under the U.S. Treasury Regulations or other official guidance including intergovernmental agreements) as

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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 and the Facility Agent 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

(iii)       any duty of confidentiality.

(d)         If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (a)(ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.

12.10    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 Facility Agent and the Facility Agent shall notify the other Finance Parties.

13.        INCREASED COSTS

13.1      Increased Costs

Except as provided below in this Clause, the Company must pay to a Finance Party the amount of any Increased Cost incurred by that Finance Party or any of its Affiliates as a result of:

(a)         the introduction of, or any change in, or any change in the interpretation, administration or application of, any law or regulation; or

(b)         compliance with any law or regulation,

in each case made after the date of this Agreement; or

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(c)         the implementation or application of or compliance with Basel III or CRD IV or any other law or regulation which implements Basel III or CRD IV (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates).

13.2      Exceptions

The Company need not make any payment for an Increased Cost to the extent that the Increased Cost is:

(a)         attributable to a Tax Deduction required by law to be made by an Obligor;

(b)         attributable to a FATCA Deduction required to be made by a Party;

(c)         compensated for under another Clause, or would have been but for an exception to that Clause;

(d)         a tax on the overall net income of a Finance Party or any of its Affiliates;

(e)         attributable to a Finance Party or its Affiliates wilfully or grossly negligently failing to comply with any law or regulation;

(f)         not claimed in the manner set out in Clause 13.3 (Claims) below; or

(g)         attributable to the implementation or application of or compliance with the “International Convergence of Capital Measurement and Capital Standards, a Revised Framework” published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement (but excluding any amendment arising out of Basel III (other than as excluded under Clause 13.4 (Basel III Costs and CRD IV Costs) below) (Basel II) or any other law or regulation with implements Basel II (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates).

13.3      Claims

A Finance Party intending to make a claim for an Increased Cost must, within 180 days of becoming aware of the circumstances giving rise to such a claim, notify the Company in writing of such circumstances setting out in detail the basis of calculation of such a claim.

13.4      Basel III Costs and CRD IV Costs

The Company need not make any payment for a Basel III Cost or CRD IV Cost unless the claiming Finance Party:

(a)         provides reasonable detail of the basis of calculation of such Basel III Costs or CRD IV Costs provided that this obligation to provide reasonable detail does not extend to information and detail that a Finance Party is not legally allowed to disclose, is confidential to third parties (including any information that is confidential to a Finance Party’s organisation or affairs) or price-sensitive in relation to listed shares or other instruments issued by that Finance Party or any of its Affiliates;

(b)         confirms to the Company that it is the Finance Party’s policy to claim Basel III Costs or CRD IV Costs to a similar extent from similar borrowers in relation to similar facilities; and

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(c)         confirms to the Company that it is making a claim for Basel III Costs or CRD IV Costs within 180 days of incurring them.

For the purpose of this Clause 13:

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;

(b)         the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text” published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and

(c)         any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”.

Basel III Cost means any Increased Cost attributable to the implementation or application of, or compliance with, Basel III.

CRD IV means:

(a)         Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms; and

(b)         Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms.

CRD IV Cost means any Increased Cost attributable to the implementation or application of, or compliance with, CRD IV.

14.        MITIGATION

14.1      Mitigation

(a)         Each Finance Party must, in agreement with the Company, take all reasonable steps to mitigate any circumstances which arise and which result or would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 8.1 (Mandatory prepayment – illegality), Clause 12 (Taxes) or Clause 13 (Increased Costs) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.

(b)         Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.

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14.2      Limitation of liability

(a)         The Company shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 14.1 (Mitigation).

(b)         A Finance Party is not obliged to take any steps under Clause 14.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.

14.3      Conduct of business by a Finance Party

No term of this Agreement will:

(a)         interfere with the right of any Finance Party to arrange its affairs (Tax or otherwise) in whatever manner it thinks fit;

(b)         subject to Clause 12.5(b) (Tax Credit), oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it in respect of Tax or the extent, order and manner of any claim; or

(c)         oblige any Finance Party to disclose any information relating to its affairs (Tax or otherwise) or any computation in respect of Tax.

15.        PAYMENTS

15.1      Place

Unless a Finance Document specifies that payments under it are to be made in another manner, all payments by a Party (other than the Facility Agent) under the Finance Documents must be made to the Facility Agent to its account at such office or bank:

(a)         in the principal financial centre of the country of the relevant currency; or

(b)         in the case of euro, in the principal financial centre of a Participating Member State or London,

as it may notify to that Party for this purpose by not less than five Business Days’ prior notice.

15.2      Funds

Payments under the Finance Documents to the Facility Agent must be made for value on the due date at such times and in such funds as the Facility Agent may specify to the Party concerned as being customary at the time for the settlement of transactions in the relevant currency in the place for payment.

15.3      Currency

(a)         Unless a Finance Document specifies that payments under it are to be made in a different manner, the currency of each amount payable under the Finance Documents shall be determined under paragraph (b) below.

(b)         In respect of payments made in respect of the Revolving Facility:

(i)          interest is payable in the currency in which the relevant amount in respect of which it is payable is denominated;

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(ii)         a repayment or prepayment of any principal amount is payable in the currency in which that principal amount is denominated on its due date;

(iii)        amounts payable in respect of costs, expenses or Taxes are payable in the currency in which they are incurred; and

(iv)        each other amount payable under the Finance Documents is payable in U.S. Dollars.

15.4      Distribution

(a)         Each payment received by the Facility Agent under the Finance Documents for another Party must, except as provided below, be made available by the Facility Agent to that Party by payment (as soon as practicable after receipt) to its account with such office or bank in:

(i)          the principal financial centre of the country of the relevant currency; or

(ii)         in the case of euro, in the principal financial centre of a Participating Member State or London,

and as it may notify to the Facility Agent for this purpose by not less than five Business Days’ prior notice.

(b)         The Facility Agent may (with the consent and at the expense of the relevant Obligor) apply any amount received by it for an Obligor in or towards payment (as soon as practicable after receipt) of any amount due from that Obligor under the Finance Documents or in or towards the purchase of any amount of any currency to be so applied.

(c)         Where a sum is paid to the Facility Agent under this Agreement for another Party, the Facility Agent is not obliged to pay that sum to that Party until it has established that it has actually received it. However, the Facility Agent may assume that the sum has been paid to it, and, in reliance on that assumption, make available to that Party a corresponding amount. If it transpires that the sum had not been made available, that Party must immediately on demand by the Facility Agent refund any corresponding amount made available to it together with interest on that amount from the date of payment to the date of receipt by the Facility Agent at a rate calculated by the Facility Agent to reflect its cost of funds.

15.5      No set off or counterclaim

All payments made by an Obligor under the Finance Documents must be calculated and be made without (and free and clear of any deduction for) set off or counterclaim.

15.6      Business Days

(a)         If a payment under the Finance Documents is due on a day which is not a Business Day, the due date for that payment will instead be the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).

(b)         During any extension of the due date for payment of any principal under this Agreement interest is payable on that principal at the rate payable on the original due date.

15.7      Impaired Agent

(a)         If, at any time, the Facility Agent becomes an Impaired Agent, an Obligor or a Lender which is required to make a payment under the Finance Documents to the Facility Agent in accordance with Clause 15.1 (Place) may instead either pay that amount direct to the required

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recipient or pay that amount to an interest-bearing account held with an Acceptable Bank and in relation to which no Insolvency Event has occurred and is continuing, in the name of the Obligor or the Lender making the payment and designated as a trust account for the benefit of the Party or Parties beneficially entitled to that payment under the Finance Documents. In each case such payments must be made on the due date for payment under the Finance Documents.

(b)         All interest accrued on the amount standing to the credit of the trust account shall be for the benefit of the beneficiaries of that trust account pro rata to their respective entitlements.

(c)         A Party which has made a payment in accordance with this Clause shall be discharged of the relevant payment obligation under the Finance Documents and shall not take any credit risk with respect to the amounts standing to the credit of the trust account.

(d)         Promptly upon the appointment of a successor Facility Agent in accordance with Clause 21.13 (Resignation of the Facility Agent), each Party which has made a payment to a trust account in accordance with this Clause shall give all requisite instructions to the bank with whom the trust account is held to transfer the amount (together with any accrued interest) to the successor Facility Agent for distribution in accordance with Clause 15.4 (Distribution).

15.8      Partial payments

(a)         If the Facility Agent receives a payment insufficient to discharge all the amounts then due and payable by the Obligors under the Finance Documents, the Facility Agent must apply that payment towards the obligations of the Obligors under the Finance Documents in the following order:

(i)          first, in or towards payment pro rata of any unpaid fees, costs and expenses of the Facility Agent under the Finance Documents;

(ii)         secondly, in or towards payment pro rata of any accrued interest or fee due but unpaid under this Agreement;

(iii)       thirdly, in or towards payment pro rata of any principal amount due but unpaid under this Agreement; and

(iv)        fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.

(b)         The Facility Agent must, if so directed by all the Lenders, vary the order set out in sub paragraphs (a)(ii) to (a)(iv) above.

(c)         This Clause will override any appropriation made by an Obligor.

15.9      Timing of payments

If a Finance Document does not provide for when a particular payment is due, that payment will be due within three Business Days of demand by the relevant Finance Party.

15.10    Facility Agent as banker

Subject to the terms of this Agreement, the Facility Agent shall be entitled to deal with money paid to it by any person for the purposes of this Agreement in the same manner as other money paid to a

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banker by its customers except that it shall not be liable to account to any person for any interest or other amounts in respect of the money.

16.        GUARANTEE AND INDEMNITY

16.1      Guarantee and indemnity

Each Guarantor jointly and severally (if there is more than one Guarantor) and irrevocably and unconditionally:

(a)         guarantees to each Finance Party punctual performance by each Obligor of all its payment obligations under the Finance Documents;

(b)         undertakes with each Finance Party that, whenever an Obligor does not pay any amount when due under any Finance Document, that Guarantor must immediately on demand by the Facility Agent pay that amount as if it were the principal obligor;

(c)         agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability it incurs as a result of an Obligor not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due. The amount payable by a Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 16 if the amount claimed had been recoverable on the basis of a guarantee; and

(d)         agrees that:

(i)          this is a guarantee of payment and not a guarantee of collection;

(ii)         its obligations under this guarantee are independent of the validity or enforceability of any or all of the obligations of any or all of the Obligors; and

(iii)       a separate action may be brought and prosecuted against that Guarantor whether or not any action is brought against any or all of the Obligors.

16.2      Continuing guarantee

This guarantee is a continuing guarantee and will extend to the ultimate balance of all sums payable by any Obligor under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part. This guarantee will enure to the benefit of any New Lender (as defined in Clause 27 (Changes to the Parties)) to which has been assigned or transferred (including by way of novation) any or all of the rights and/or obligation of a Lender under this Agreement.

16.3      Reinstatement

If any discharge, release or arrangement (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is made by a Finance Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored on insolvency, liquidation, administration or otherwise, without limitation, then the liability of each Guarantor under this Clause ‎16 will continue or be reinstated as if the discharge, release or arrangement had not occurred.

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16.4      Waiver of defences

The obligations of each Guarantor under this Clause will not be affected by any act, omission or thing which, but for this provision, would reduce, release or prejudice any of its obligations under this Clause (whether or not known to it or any Finance Party). This includes:

(a)         any time or waiver granted to, or composition with, any person;

(b)         any release of any person under the terms of any composition or arrangement;

(c)         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 person;

(d)         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;

(e)         any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any person;

(f)         any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of a Finance Document or any other document or security, including without limitation, any change in the purpose of, any extension of or increase in any facility or the addition of any new facility under any Finance Document or other document or security;

(g)         any unenforceability, illegality, invalidity or non-provability of any obligation of any person under any Finance Document or any other document or security; or

(h)         any insolvency or similar proceeding relating to any Obligor.

16.5      Guarantor intent

Without prejudice to the generality of Clause 16.4 (Waiver of defences), each Guarantor expressly confirms that it intends that this guarantee shall extend from time to time to any (however fundamental) variation, increase, extension or addition of or to any of the Finance Documents and/or any facility or amount made available under any of the Finance Documents for the purposes of or in connection with any of the following: business acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing existing facilities; refinancing any other indebtedness; making facilities available to new borrowers; any other variation or extension of the purposes for which any such facility or amount might be made available from time to time; and any fees, costs and/or expenses associated with any of the foregoing.

16.6      Immediate recourse

Each Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other right or security or claim payment from any person before claiming from that Guarantor under this Clause and this waiver applies irrespective of any law or any other provision of a Finance Document to the contrary.

16.7      Appropriations

Until all amounts which may be or become payable by the Obligors under the Finance Documents have been irrevocably paid in full, each Finance Party (or any trustee or agent on its behalf) may without affecting the liability of any Guarantor under this Clause:

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(a)         refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts; or

(b)         apply and enforce them in such manner and order as it sees fit (whether against those amounts or otherwise); and

(c)         hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of that Guarantor’s liability under this Clause.

16.8      Non-competition

Unless:

(a)         all amounts which may be or become payable by the Obligors under the Finance Documents have been irrevocably paid in full; or

(b)         the Facility Agent otherwise directs,

no Guarantor will, after a claim has been made or by virtue of any payment or performance by it under this Clause:

(i)          be subrogated to any rights, security or moneys held, received or receivable by any Finance Party (or any trustee or agent on its behalf);

(ii)         be entitled to any right of contribution or indemnity in respect of any payment made or moneys received on account of that Guarantor’s liability under this Clause;

(iii)       claim, rank, prove or vote as a creditor of any Obligor or its estate in competition with any Finance Party (or any trustee or agent on its behalf);

(iv)        receive, claim or have the benefit of any payment, distribution or security from or on account of any Obligor, or exercise any right of set-off as against any Obligor; or

(v)         to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which any Guarantor has given a guarantee, undertaking or indemnity under Clause 16.1 (Guarantee and indemnity).

Each Guarantor must hold in trust for and immediately pay or transfer to the Facility Agent for the Finance Parties any payment or distribution or benefit of security received by it contrary to this Clause or in accordance with any directions given by the Facility Agent under this Clause.

16.9      Additional security

This guarantee is in addition to and is not in any way prejudiced by any other security now or subsequently held by any Finance Party.

17.        REPRESENTATIONS

17.1      Representations

The representations set out in Clauses 17.2 (Status) to 17.14 (Sanctions) are made by each Obligor or (if it so states) the Company to each Finance Party.

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17.2      Status

(a)         It is a limited liability company, duly incorporated and validly existing under the laws of its jurisdiction of incorporation.

(b)         It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted.

17.3      Powers and authority

It has the power to enter into and perform, and has taken all necessary corporate action to authorise the entry into and performance of, the Finance Documents to which it is or will be a party.

17.4      Legal validity

Subject to any general principles of law limiting its obligations and referred to in any legal opinion required under this Agreement, each Finance Document to which it is a party is its legally binding, valid and enforceable obligation.

17.5      Non conflict

The entry into and performance by it of the Finance Documents do not conflict with:

(a)         any law or regulation applicable to it; or

(b)         its constitutional documents; or

(c)         at the date of this Agreement, any document which is binding upon it or any of its Material Subsidiaries or any of its or its Material Subsidiaries’ assets.

17.6      No default

(a)         No Event of Default is outstanding or will result from the execution of, or the performance of any transaction contemplated by, any Finance Document.

(b)         No other event is outstanding which constitutes a default under any document which is binding on it or any of its Subsidiaries or any of its or its Subsidiaries’ assets to an extent or in a manner which is reasonably likely to have a Material Adverse Effect.

17.7      Authorisations

All authorisations required by it in connection with the entry into, performance, validity and enforceability of, and the transactions contemplated by, the Finance Documents have been or will have been by the date of delivery of the first Request, obtained or effected (as appropriate) and are, or will be by the date of delivery of the first Request, in full force and effect.

17.8      Financial statements

In the case of each Obligor which has provided audited consolidated financial statements pursuant to Clause 18.1 (Financial statements), those financial statements most recently delivered to the Facility Agent (which, at the date of this Agreement, are the Original Financial Statements):

(a)         have been prepared in accordance with accounting principles and practices generally accepted in its jurisdiction of incorporation, consistently applied; and

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(b)         give a true and fair view of its consolidated financial condition as at the date to which they were drawn up,

except, in each case, as disclosed to the contrary in those financial statements.

17.9      No material adverse change

In the case of the Company only, as at the date of this Agreement, there has been no material adverse change in its consolidated financial condition since the date to which the Original Financial Statements were drawn up which is likely to have a Material Adverse Effect.

17.10    Litigation

No litigation, arbitration or administrative proceedings are current or, to its knowledge, pending or threatened in writing, which are reasonably likely to have a Material Adverse Effect.

17.11    Information

(a)         All material factual information supplied by the Company to any Finance Party in writing was accurate in all material respects as at the date to which it was prepared.

(b)         As at its date and to the best of its knowledge, the opinions, projections and forecasts supplied by the Company to any Finance Party and the assumptions on which they were based were arrived at after due and careful consideration and genuinely represented its views.

(c)         To the best of its knowledge there are no material facts or circumstances which have not been disclosed to the parties to this Agreement by the Company prior to the date of this Agreement and which would make any of the information, opinions, projections, forecasts or assumptions supplied by the Company inaccurate or misleading in any material respect.

17.12    ERISA

No ERISA Events have occurred with respect to any Obligor or any of its ERISA Affiliates, except as would not reasonably be likely to have a Material Adverse Effect.

17.13    Margin Stock

(a)         No part of any Loan, or any proceeds of any extension of credit hereunder, will be used immediately, directly, indirectly, incidentally or ultimately for any purpose that entails a violation (including on the part of any Finance Party) of, or that is inconsistent with, the provisions of the Margin Regulations.

(b)         After applying the proceeds of any Loan or other extension of credit hereunder, not more than 25 per cent. of the value of the assets (as determined by the Company using reasonable methods within the purview of the Margin Regulations) of the Company and its Subsidiaries that are subject to the provisions of Clause 19.7 (Negative pledge) or Clause 19.8 (Disposals), or otherwise subject to any similar restriction contained in any agreement or instrument between a Borrower and a Lender, or any Affiliate of any Lender relating to Financial Indebtedness, consists of Margin Stock.

17.14    Sanctions

None of the Obligors, any Subsidiary thereof or any of their respective directors or officers is a Sanctioned Person.

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17.15    Times for making representations

(a)         The representations set out in this Clause are made on the date of this Agreement.

(b)         The representations in Clauses 17.2 (Status) to 17.5(b) (Non-conflict) (inclusive), 17.6 (No default) to 17.8 (Financial Statements) (inclusive), 17.12 (ERISA), 17.14 (Sanctioned Persons) (together, the Term Representations) and Clause 17.13 (Margin Stock) are deemed to be repeated by:

(i)          each Additional Obligor and the Company on the date that Additional Obligor becomes an Obligor; and

(ii)         each Obligor:

(A)        on the date of each Request and on each Utilisation Date; and

(B)        in respect of the Term Representations, on the first day of each Term of a Loan.

(c)         When a representation is repeated, it is applied to the circumstances existing at the time of repetition.

18.        INFORMATION COVENANTS

18.1      Financial statements

(a)         The Company must supply to the Facility Agent in sufficient copies for all the Lenders:

(i)          its audited consolidated financial statements for each of its financial years;

(ii)         if required to be produced by applicable law, the audited financial statements of each Obligor for each of its financial years; and

(iii)       its interim consolidated financial statements for the first half year of each of its financial years.

(b)         All financial statements must be supplied to the Facility Agent at the same time as they are dispatched by the Company to its shareholders following the end of the relevant financial period.

18.2      Compliance Certificate

(a)         The Company must supply to the Facility Agent a Compliance Certificate:

(i)          in the case of the Company’s audited consolidated financial statements, within 180 days; and

(ii)         in the case of the Company’s interim consolidated financial statements, within 120 days

of the end of the relevant financial period.

(b)         A Compliance Certificate is a certificate substantially in the form of Schedule 7  (Form of Compliance Certificate) setting out, among other things, calculations of the Company’s ratio of Consolidated Total Net Borrowings to Consolidated EBITDA for the purposes of Clause 9 (Interest).

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(c)         A Compliance Certificate must be signed by two authorised signatories of the Company.

18.3      Form of financial statements

(a)         The Company must ensure that each set of financial statements supplied under this Agreement fairly represents the relevant Obligor’s financial condition (consolidated or otherwise) as at the date to which those financial statements were drawn up.

(b)         The Company must notify the Facility Agent of any material change to the basis on which its audited consolidated financial statements are prepared.

(c)         If requested by the Facility Agent, the Company must supply to the Facility Agent a full description of any change notified under paragraph (b) above.

(d)         If requested by the Facility Agent, the Company must enter into discussions for a period of not more than 30 days with a view to agreeing any amendments required to be made to this Agreement to place the Company and the Lenders in the same position as they would have been in if the change had not happened. Any agreement between the Company and the Facility Agent will be, with the prior consent of the Majority Lenders, binding on all the Parties.

(e)         If no agreement is reached under paragraph (d) above on the required amendments to this Agreement, the Company must ensure that its auditors certify those amendments which would be necessary to place the Company and the Lenders in the same position as they would have been in if the change had not happened; the certificate of the auditors will be, in the absence of manifest error, binding on all the Parties and the certified amendments shall be deemed to be incorporated into this Agreement.

18.4      Information – miscellaneous

The Company must supply to the Facility Agent:

(a)         copies of all documents despatched by the Company to its shareholders (or any class of them) or its creditors generally at the same time as they are despatched;

(b)         promptly upon becoming aware of them, details of any litigation, arbitration or administrative proceedings which:

(i)          are current, threatened in writing or pending;

(ii)         are reasonably likely to be adversely determined; and

(iii)       would, if adversely determined, have a Material Adverse Effect; and

(c)         promptly on request, a list of the then current Material Subsidiaries.

18.5      Use of websites

(a)         The Company may satisfy its obligation under this Agreement to deliver any information in relation to those Lenders (the Website Lenders) who accept this method of communication by posting this information onto an electronic website designated by the Company and the Facility Agent (the Designated Website) if:

(i)          the Facility Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;

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(ii)        both the Company and the Facility Agent are aware of the address of and any relevant password specifications for the Designated Website; and

(iii)       the information is in a format previously agreed between the Company and the Facility Agent.

If any Lender (a Paper Form Lender) does not agree to the delivery of information electronically then the Facility Agent shall notify the Company accordingly and the Company shall supply the information to the Facility Agent (in sufficient copies for each Paper Form Lender) in paper form. In any event the Company shall supply the Facility Agent with at least one copy in paper form of any information required to be provided by it.

(b)         The Facility Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Company and the Facility Agent.

(c)         The Company shall promptly upon becoming aware of its occurrence notify the Facility Agent if:

(i)          the Designated Website cannot be accessed due to technical failure;

(ii)         the password specifications for the Designated Website change;

(iii)       any new information which is required to be provided under this Agreement is posted onto the Designated Website;

(iv)        any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or

(v)         the Company becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.

If the Company notifies the Facility Agent under paragraph (c)(i) or paragraph (c)(v) above, all information to be provided by the Company under this Agreement after the date of that notice shall be supplied in paper form unless and until the Facility Agent and each Website Lender is satisfied that the circumstances giving rise to the notification are no longer continuing.

(d)         Any Website Lender may request, through the Facility Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website. The Company shall comply with any such request within ten Business Days.

18.6      “Know Your Customer” checks

(a)         The Company shall promptly upon the request of the Facility Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf of any prospective new Lender) in order for the Facility Agent, such Lender or any prospective new Lender to carry out and be satisfied with the results of all necessary “know your customer” or other checks in relation to any person that it is required to carry out pursuant to the transactions contemplated in the Finance Documents.

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(b)         Each Lender shall promptly upon the request of the Facility Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself) in order for the Facility Agent to carry out and be satisfied with the result of all necessary “know your customer” or other checks in relation to any person that it is required to carry out pursuant to the transactions contemplated in the Finance Documents.

18.7      Notification of Default

Unless the Facility Agent has already been so notified by another Obligor, each Obligor must notify the Facility Agent of any Event of Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence.

19.        GENERAL COVENANTS

19.1      General

Each Obligor agrees to be bound by the covenants set out in this Clause relating to it and, where the covenant is expressed to apply to each member or to specified members of the Group, each Obligor must ensure that each of its Subsidiaries to which the covenant relates performs that covenant.

19.2      Authorisations

Each Obligor must promptly obtain, maintain and comply with the terms of any authorisation required under any law or regulation to enable it to perform its obligations under, or for the validity or (subject to any general principles of law limiting its obligations and referred to in any legal opinion required under this Agreement) enforceability of, any Finance Document.

19.3      Compliance with laws

Each member of the Group must comply in all respects with all laws and regulations to which it is subject where failure to do so is reasonably likely to have a Material Adverse Effect.

19.4      Compliance with ERISA

No Obligor shall allow, or permit any of its ERISA Affiliates to allow, any ERISA Event to occur with respect to any Plan to the extent that any ERISA Event, individually or when aggregated with all other ERISA Events, is reasonably likely to have a Material Adverse Effect.

19.5      Use of proceeds

No Obligor will request any Utilisation, and no Obligor shall use, and shall procure that its Subsidiaries shall not use, directly or indirectly, the proceeds of any Utilisation:

(a)         in furtherance of an offer, payment, promise to pay, or authorisation of the payment or giving of money, or anything else of value, to any person in violation of any Anti-Corruption Laws or in violation of any Anti‑Money Laundering Laws;

(b)         for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, in a manner that would result in a violation of any applicable Sanctions; or

(c)         in any manner that would result in any Obligor or member of the Group, or any of their respective directors or officers, or any Finance Party, being in violation of any applicable Sanctions or becoming a Sanctioned Person.

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19.6      Pari passu ranking

Each Obligor must ensure that its payment obligations under the Finance Documents rank at least pari passu with all its other present and future unsecured payment obligations, except for obligations mandatorily preferred by law applying to companies generally.

19.7      Negative pledge

(a)         Except as provided below, no member of the Group may create or allow to exist any Security Interest on any of its assets.

(b)         Paragraph (a) does not apply to:

(i)          any Security Interest comprising a netting, set off or lien arrangement entered into by a member of the Group in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances;

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

(iii)       any Security Interest on an asset, or an asset of any person, acquired by a member of the Group after the date of this Agreement to the extent that the principal amount secured by that Security Interest has not been incurred or increased in contemplation of, or since, the acquisition;

(iv)        any Security Interest arising under any contract for the purchase of goods entered into in the normal course of trading;

(v)         any Security Interest over goods and products or over the documents of title or insurance policies relating to such goods and products, arising in the ordinary course of trading in connection with letters of credit and similar transactions, provided such Security Interest secures only so much of the acquisition cost or selling price (and amounts incidental thereto) of these goods and products which is required to be paid within 6 months after the date upon which the same was first incurred;

(vi)        set-off rights on market standard terms contained in any hedging agreement;

(vii)       set-off rights in the ordinary course of trading;

(viii)     any Security Interest created in substitution for any of the above Security Interests but only:

(A)        if the Security Interest is over the same asset;

(B)        if the principal amount secured by that Security Interest does not exceed the principal amount secured by the Security Interest which is replaced; and

(C)        if the Security Interest which is replaced was only permitted to be outstanding for a certain period of time, to the extent the new Security Interest is not outstanding for any greater period; and

(ix)        any Security Interest securing indebtedness the amount of which (when aggregated with the amount of assets or receivables sold, transferred or disposed of under paragraph (c) below) does not exceed 10 per cent. of the consolidated gross assets of the Group as shown in the most recent audited consolidated financial statements of the Company delivered to the Facility Agent pursuant to Clause 18.1 (Financial

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statements) (being as at the date of this Agreement the Original Financial Statements).

(c)         No member of the Group may sell, transfer or otherwise dispose of any of its receivables on recourse terms, in circumstances where the transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset unless the amount of assets or receivables sold, transferred or disposed of under this paragraph (including any assets the subject of any such arrangement on the date of this Agreement) (when aggregated with the amount of indebtedness secured under Clause 19.7(b)(ix) above) does not exceed 10 per cent. of the consolidated gross assets of the Group as shown in the most recent audited consolidated financial statements of the Company delivered to the Facility Agent pursuant to Clause 18.1 (Financial statements) (being as at the date of this Agreement the Original Financial Statements).

19.8      Disposals

(a)         In this Clause, disposal means a sale, transfer, grant, lease or other disposal, whether voluntary or involuntary, and dispose will be construed accordingly.

(b)         Except as provided below, the Company will not, and will procure that no Subsidiary will, either in a single transaction or in a series of transactions and whether related or not, dispose of all or any part of its assets.

(c)         Paragraph (b) does not apply to any disposal:

(i)          made in the ordinary course of business of the disposing entity;

(ii)         of assets which are exchanged within 180 days for other assets comparable or superior as to type, value and quality;

(iii)       by one company in the Group to another company in the Group;

(iv)        of machinery or plant at or nearly at the end of their useful life or period of depreciation;

(v)         of obsolete equipment owned by a member of the Group no longer required for the purposes of the business carried on by that member of the Group;

(vi)        which would not be deemed to be a class 1 transaction under the Listing Rules of the Financial Conduct Authority or which would not require the approval of the shareholders of the Company in general meeting; or

(vii)       the net proceeds of which are applied in permanent prepayment and cancellation of Loans.

19.9      Subsidiary Financial Indebtedness

(a)         Except as provided below no member of the Group (other than the Company) may incur any Financial Indebtedness.

(b)         Paragraph (a) does not apply to:

(i)          any Financial Indebtedness of any person acquired by a member of the Group which is incurred under arrangements in existence at the date of acquisition, but only for a period of six months from the date of acquisition;

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(ii)         any derivative transaction protecting against or benefiting from fluctuations in any rate or price entered into in the ordinary course of business;

(iii)       the capital element of any liability under finance or capital leases up to a maximum amount not exceeding U.S.$50,000,000 (or the equivalent in any other currency) or any higher amount which is approved in writing by the Facility Agent acting on the instructions of the Majority Lenders;

(iv)        foreign exchange, interest rate or similar hedging arrangements entered into only for the purposes of managing the interest rate and foreign exchange rates of the Group and not for any speculative purpose or pursuant to any financial trading;

(v)         Financial Indebtedness incurred in favour of banks or other financial institutions as a result of netting or set off arrangements entered into by a member of the Group in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances on accounts maintained with such banks or financial institutions but only to the extent that such Financial Indebtedness does not exceed the amount of such credit balances;

(vi)        any Financial Indebtedness due under any Finance Document; or

(vii)       any other Financial Indebtedness which in aggregate does not exceed 5 per cent. of consolidated gross assets as shown in the most recent audited consolidated financial statements of the Company.

19.10    Change of business

The Company must ensure that there are no substantial changes made to the general nature of the business of the Group, taken as a whole, as exists at the date of this Agreement such that the principal activities of the Group, taken as a whole, are no longer consistent with such business.

19.11    Mergers

(a)         No Obligor may enter into any amalgamation, demerger, merger or reconstruction otherwise than under an intra Group reorganisation on a solvent basis or other transaction agreed by the Majority Lenders.

(b)         Paragraph (a) above does not apply to any sale, lease, transfer or other disposal permitted pursuant to Clause 19.8 (Disposals).

20.        DEFAULT

20.1      Events of Default

(a)         Save for Clause 20.13 (Acceleration), each of the events set out in this Clause 20 is an Event of Default.

(b)         In this Clause 20:

Material Group Member means an Obligor or a Material Subsidiary; and

Permitted Transaction means:

(i)          an intra Group reorganisation of a Material Subsidiary on a solvent basis; or

(ii)         any other transaction agreed by the Majority Lenders.

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20.2      Non payment

An Obligor does not pay on the due date any amount payable by it under the Finance Documents in the manner required under the Finance Documents, unless the non payment:

(a)         is caused by administrative or technical error; and

(b)         is remedied within three Business Days (in the case of principal amounts due under this Agreement) and within five Business Days (in the case of any other amount due under this Agreement) of its due date.

20.3      Breach of other obligations

(a)         An Obligor does not comply with any term of Clause 19.5 (Use of proceeds); or

(b)         an Obligor does not comply with any other term of the Finance Documents not already referred to in this Clause, unless the non compliance:

(i)          is capable of remedy; and

(ii)         is remedied within twenty Business Days of the earlier of the Facility Agent giving notice and the Obligor becoming aware of the non compliance.

20.4      Misrepresentation

A representation made or repeated by an Obligor in any Finance Document or in any document delivered by or on behalf of an Obligor under any Finance Document is incorrect in any material respect when made or deemed to be repeated unless the circumstances giving rise to the misrepresentation:

(a)         are capable of remedy; and

(b)         are remedied within twenty Business Days of the earlier of the Facility Agent giving notice and the relevant Obligor becoming aware of the misrepresentation.

20.5      Cross default

(a)         Any of the following occurs in respect of a member of the Group:

(i)          any of its Financial Indebtedness is not paid when due (after the expiry of any originally applicable grace period);

(ii)         any of its Financial Indebtedness:

(A)        becomes prematurely due and payable; or

(B)        is placed on demand,

in each case, as a result of an event of default; or

(iii)       any commitment for its Financial Indebtedness is cancelled or suspended as a result of an event of default.

(b)         No Event of Default will occur under this Clause 20.5 if:

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(i)          the Financial Indebtedness is of any person acquired by a member of the Group which is:

(A)        incurred under the arrangements in existence at the date of acquisition; and

(B)        the event of default in respect thereof is no longer outstanding after one month from the date of acquisition;

or

(ii)        the aggregate amount of Financial Indebtedness falling within paragraphs (i) to (iii) above is at the time of any determination less than U.S.$30,000,000 or its equivalent.

20.6      Insolvency

Any of the following occurs in respect of a Material Group Member:

(a)         it is or is deemed for the purposes of Section 123 of the Insolvency Act 1986 (but as if the figure of £750 in paragraph (a) was replaced with the figure of U.S.$10,000,000 (or its equivalent)) to be unable to pay its debts as they fall due;

(b)         it admits its inability to pay its debts as they fall due;

(c)         it suspends making payments on its debts generally or announces an intention to do so;

(d)         by reason of actual or anticipated financial difficulties, it begins negotiations with creditors generally or any class of them (excluding any Finance Party in its capacity as such) for the rescheduling of any of its indebtedness;

(e)         the value of its assets is less than its liabilities (taking into account contingent and prospective liabilities); or

(f)         a moratorium is declared in respect of its indebtedness generally.

20.7      Insolvency proceedings

(a)         Except as provided in paragraph (b) below, any of the following occurs in respect of a Material Group Member:

(i)          the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise);

(ii)         any step is taken with a view to a composition, compromise, assignment or similar arrangement with its creditors generally;

(iii)       a meeting of it is convened for the purpose of considering any resolution for or to petition for its winding up, administration or dissolution or any such resolution is passed;

(iv)        any person presents a petition for its bankruptcy, winding up, administration or dissolution;

(v)         an order for its winding up, administration or dissolution is made;

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(vi)        any liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator or similar officer is appointed in respect of it;

(vii)      its directors or other officers request the appointment of a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator or similar officer; or

(viii)     any other analogous step or procedure is taken in any jurisdiction.

(b)         Paragraph (a) does not apply to:

(i)          any step or procedure which is part of a Permitted Transaction; or

(ii)         a petition for winding-up presented by a creditor which is being contested in good faith and with due diligence and is discharged or struck out within fourteen days of commencement.

20.8      Creditors’ process

Any attachment, sequestration, distress, execution or analogous event affects any asset(s) of a Material Group Member, having an aggregate value of U.S.$10,000,000 (or its equivalent), and is not discharged within 21 days or is being contested in good faith to the satisfaction of the Facility Agent acting reasonably.

20.9      Cessation of business

A Material Group Member ceases, or threatens to cease, to carry on business except:

(a)         as part of a Permitted Transaction; or

(b)         as a result of any disposal allowed under this Agreement.

20.10    Ownership

Any Obligor (other than the Company) is not or ceases to be a wholly owned Subsidiary of the Company.

20.11    Unlawfulness

It is or becomes unlawful for an Obligor to perform any of its obligations under the Finance Documents.

20.12    Repudiation

An Obligor repudiates a Finance Document or purports to repudiate a Finance Document.

20.13    Acceleration

If an Event of Default is outstanding, the Facility Agent may, and must if so directed by the Majority Lenders, by notice to the Company:

(a)         cancel the Total Commitments; and/or

(b)         declare that all or part of any amounts outstanding under the Finance Documents are:

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(i)          immediately due and payable; and/or

(ii)         payable on demand by the Facility Agent acting on the instructions of the Majority Lenders.

Any notice given under this Clause will take effect in accordance with its terms.

21.        THE ADMINISTRATIVE PARTIES

21.1      Appointment of the Facility Agent

(a)         Each Finance Party (other than the Facility Agent) irrevocably appoints the Facility Agent to act as its agent under the Finance Documents.

(b)         Each Finance Party (other than the Facility Agent) irrevocably authorises the Facility Agent to:

(i)          perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions that are specifically given to it under or in connection with the Finance Documents, together with any other incidental rights, powers, authorities and discretions; and

(ii)         execute each Finance Document expressed to be executed by the Facility Agent.

(c)         The Facility Agent is authorised by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and the Prudential Regulation Authority. Nothing in this Agreement shall require the Facility Agent to carry on an activity of the kind specified by any provision of Part II (other than article 5 (accepting deposits)) of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 or to lend money to any Borrower in its capacity as Agent.

21.2      Instructions

(a)         The Facility Agent shall:

(i)          unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Facility Agent in accordance with any instructions given to it by:

(A)        all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and

(B)        in all other cases, the Majority Lenders; and

(ii)         not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph (i) above.

(b)         The Facility Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Lender or group of Lenders, from that Lender or group of Lenders) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion. The Facility Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.

(c)         Save in the case of decisions stipulated to be a matter for any other Lender or group of Lenders under the relevant Finance Document and unless a contrary indication appears in a

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Finance Document, any instructions given to the Facility Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.

(d)         The Facility Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions.

(e)         In the absence of instructions, the Facility Agent may act (or refrain from acting) as it considers to be in the best interest of the Lenders.

(f)         The Facility Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender’s consent) in any legal or arbitration proceedings relating to any Finance Document.

21.3      Duties of the Facility Agent

(a)         The Facility Agent’s duties under the Finance Documents are solely mechanical and administrative in nature.

(b)         Subject to paragraph (c) below, the Facility Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Facility Agent for that Party by any other Party.

(c)         Without prejudice to Clause 27.11 (Copy of Transfer Certificate or Increase Confirmation to Company), paragraph (b) above shall not apply to any Transfer Certificate or any Increase Confirmation.

(d)         Except where a Finance Document specifically provides otherwise, the Facility Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.

(e)         If the Facility Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.

(f)         If the Facility Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Facility Agent or a Mandated Lead Arranger) under this Agreement it shall promptly notify the other Finance Parties.

(g)         The Facility Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).

21.4      Role of the Mandated Lead Arrangers

Except as specifically provided in the Finance Documents, no Mandated Lead Arranger has any obligations of any kind to any other Party in connection with any Finance Document.

21.5      No fiduciary duties

Except as specifically provided in a Finance Document, nothing in any Finance Document makes an Administrative Party a trustee or fiduciary for any other Party or any other person. No Administrative

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Party shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.

21.6      Business with the Group

Each Administrative Party may accept deposits from, lend money to and generally engage in any kind of banking or other business with any member of the Group.

21.7      Individual position of an Administrative Party

(a)         If it is also a Lender, each Administrative Party has the same rights and powers under the Finance Documents as any other Lender and may exercise those rights and powers as though it were not an Administrative Party.

(b)         Each Administrative Party may:

(i)          carry on any business with any Obligor or its related entities (including acting as an agent or a trustee for any other financing); and

(ii)         retain any profits or remuneration it receives under the Finance Documents or in relation to any other business it carries on with any Obligor or its related entities.

(c)         Without limiting the generality of the foregoing, the fees, commissions and expenses payable to the Facility Agent for services rendered and the performance of its obligations under this Agreement shall not be abated by any remuneration or other amounts or profits receivable by the Facility Agent (or by any of its Affiliates) in connection with any transaction effected by the Facility Agent with or for any other Finance Party or any Obligor.

21.8      Reliance, rights and discretions of the Facility Agent

(a)         The Facility Agent may:

(i)          rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;

(ii)         assume that:

(A)        any instructions received by it from the Majority Lenders, any Lenders or any group of Lenders are duly given in accordance with the terms of the Finance Documents; and

(B)        unless it has received notice of revocation, that those instructions have not been revoked; and

(iii)       rely on a certificate from any person:

(A)        as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or

(B)        to the effect that such person approves of any particular dealing, transaction, step, action or thing,

as sufficient evidence that that is the case and, in the case of paragraph (A) above, may assume the truth and accuracy of that certificate.

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(b)         The Facility Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that:

(i)          no Default has occurred (unless it has actual knowledge of a Default arising under Clause 20.2 (Non payment));

(ii)         any right, power, authority or discretion vested in any Party or any group of Lenders has not been exercised; and

(iii)       any notice or request made by the Company (other than a Request) is made on behalf of and with the consent and knowledge of all the Obligors.

(c)         The Facility Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.

(d)         Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Facility Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Facility Agent (and so separate from any lawyers instructed by the Lenders) if the Facility Agent in its reasonable opinion deems this to be necessary.

(e)         The Facility Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Facility Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.

(f)         The Facility Agent may act in relation to the Finance Documents through its officers, employees and agents.

(g)         Unless a Finance Document expressly provides otherwise the Facility Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.

(h)         Notwithstanding any other provision of any Finance Document to the contrary, no Administrative Party is obliged to do or omit to do anything if it would, or might in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.

(i)          Notwithstanding any provision of any Finance Document to the contrary, the Facility Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.

21.9      Responsibility for documentation

No Administrative Party is responsible or liable for:

(i)          the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, any Mandated Lead Arranger, an Obligor or any other person in or in connection with any Finance Document or the transactions contemplated in the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;

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(ii)        the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; or

(iii)       any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.

21.10    No duty to monitor

The Facility Agent shall not be bound to enquire:

(a)         whether or not any Default has occurred;

(b)         as to the performance, default or any breach by any Party of its obligations under any Finance Document; or

(c)         whether any other event specified in any Finance Document has occurred.

21.11    Exclusion of liability

(a)         Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Facility Agent), the Facility Agent will not be liable for:

(i)          any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document, unless directly caused by its gross negligence or wilful misconduct;

(ii)         exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document, other than by reason of its gross negligence or wilful misconduct; or

(iii)       without prejudice to the generality of paragraphs (i) and (ii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever (but not including any claim based on the fraud of the Facility Agent) arising as a result of:

(A)        any act, event or circumstance not reasonably within its control; or

(B)        the general risks of investment in, or the holding of assets in, any jurisdiction,

including (in each case and without limitation) such damages, costs, losses, diminution in value or liability arising as a result of: nationalisation, expropriation or other governmental actions; any regulation, currency restriction, devaluation or fluctuation; market conditions affecting the execution or settlement of transactions or the value of assets (including any Disruption Event); breakdown, failure or malfunction of any third party transport, telecommunications, computer services or systems; natural disasters or acts of God; war, terrorism, insurrection or revolution; or strikes or industrial action.

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(b)         No Party (other than the Facility Agent) may take any proceedings against any officer, employee or agent of the Facility Agent in respect of any claim it might have against the Facility Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document and any officer, employee or agent of the Facility Agent may rely on this Clause.

(c)         The Facility Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Facility Agent if the Facility Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Facility Agent for that purpose.

(d)         Nothing in this Agreement shall oblige any Administrative Party to carry out:

(i)          any “know your customer” or other checks in relation to any person; or

(ii)         any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Lender,

on behalf of any Lender and each Lender confirms to the Facility Agent and each Mandated Lead Arrangers that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by any Administrative Party.

(e)         Without prejudice to any provision of any Finance Document excluding or limiting the Facility Agent's liability, any liability of the Facility Agent arising under or in connection with any Finance Document shall be limited to the amount of actual loss which has been suffered (as determined by reference to the date of default of the Facility Agent or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Facility Agent at any time which increase the amount of that loss. In no event shall the Facility Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Facility Agent has been advised of the possibility of such loss or damages.

21.12    Lenders’ indemnity to the Facility Agent

(a)         Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Facility Agent, within three Business Days of demand, against any cost, loss or liability incurred by the Facility Agent (otherwise than by reason of the Facility Agent's gross negligence or wilful misconduct) in acting as Facility Agent under the Finance Documents (unless the Facility Agent has been reimbursed by an Obligor pursuant to a Finance Document).

(b)         The indemnity under this Clause 21.12 is a continuing obligation, independent of the Lenders’ other obligations under or in connection with this Agreement or any other Finance Document, and survives after this Agreement is terminated. It is not necessary for the Facility Agent to pay any amount or incur any expense before enforcing this indemnity.

21.13    Resignation of the Facility Agent

(a)         The Facility Agent may resign and appoint one of its Affiliates acting through an office in the United Kingdom as successor by giving notice to the Lenders and the Company.

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(b)         Alternatively the Facility Agent may resign by giving 30 days’ notice to the Lenders and the Company, in which case the Majority Lenders (after consultation with the Company) may appoint a successor Facility Agent.

(c)         If the Majority Lenders have not appointed a successor Facility Agent in accordance with paragraph (b) above within 20 days after notice of resignation was given, the retiring Facility Agent (after consultation with the Company) may appoint a successor Facility Agent (acting through an office in the United Kingdom).

(d)         If the Facility Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain as agent and the Facility Agent is entitled to appoint a successor Facility Agent under paragraph (c) above, the Facility Agent may (if it concludes (acting reasonably) that it is necessary to do so in order to persuade the proposed successor Agent to become a party to this Agreement as Facility Agent) agree with the proposed successor Facility Agent amendments to this Clause 21 and any other term of this Agreement dealing with the rights or obligations of the Facility Agent consistent with then current market practice for the appointment and protection of corporate trustees together with any reasonable amendments to the agency fee payable under this Agreement which are consistent with the successor Facility Agent's normal fee rates and those amendments will bind the Parties.

(e)         The retiring Facility Agent shall make available to the successor Facility Agent such documents and records and provide such assistance as the successor Facility Agent may reasonably request for the purposes of performing its functions as Facility Agent under the Finance Documents.

(f)         The Facility Agent's resignation notice shall only take effect upon the appointment of a successor.

(g)         Upon the appointment of a successor, the retiring Facility Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (e) above) but shall remain entitled to the benefit of Clause 24.2(b) and this Clause 21 (and any agency fees for the account of the retiring Facility Agent shall cease to accrue from (and shall be payable on) that date). Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.

(h)         After consultation with the Company, the Majority Lenders may, by notice to the Facility Agent, require it to resign in accordance with paragraph (b) above. In this event, the Facility Agent shall resign in accordance with paragraph (b) above.

(i)          The Facility Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Facility Agent pursuant to paragraph (c) above) if on or after the date which is three months before the earliest FATCA Application Date relating to any payment to the Facility Agent under the Finance Documents, either:

(i)          the Facility Agent fails to respond to a request under Clause 12.9 (FATCA information) and the Company or a Lender reasonably believes that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;

(ii)         the information supplied by the Facility Agent pursuant to Clause 12.9 (FATCA information) indicates that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or

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(iii)       the Facility Agent notifies the Company and the Lenders that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date,

and (in each case) the Company or a Lender reasonably believes that a Party will be required to make a FATCA Deduction that would not be required if the Facility Agent were a FATCA Exempt Party, and the Company or that Lender, by notice to the Facility Agent, requires it to resign.

21.14    Confidentiality

(a)         In acting as agent for the Finance Parties, the Facility Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.

(b)         If information is received by another division or department of the Facility Agent, it may be treated as confidential to that division or department and the Facility Agent shall not be deemed to have notice of it.

21.15    Relationship with Lenders

(a)         Subject to Clause 27.13 (Pro rata interest settlement), the Facility Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Facility Agent’s principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office:

(i)          entitled to or liable for any payment due under any Finance Document on that day; and

(ii)         entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,

unless it has received not less than five Business Days’ prior notice from that Lender to the contrary in accordance with the terms of this Agreement.

(b)         The Facility Agent, acting for this purpose solely as an agent of the Company, must keep a register (the Register) of all the Parties and supply the Company with a copy of the Register on request (but the Facility Agent shall not be required to supply the Company with a copy of the Register more than once per calendar month). The Register will include each Lender’s Facility Office(s) and contact details for the purposes of this Agreement. The Register shall be available for inspection by any Borrower, at any reasonable time and from time to time upon reasonable prior notice. The right to the principal of, and interest on, the Loans may be transferred or assigned only if such transfer or assignment is recorded in the Register.

(c)         Any Lender may by notice to the Facility Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address, and (where communication by electronic mail or other electronic means is permitted under Clause 33.5 (Electronic communication)) electronic mail address and/or any other information required to enable the transmission of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as a notification of a substitute address, fax number, electronic mail address (or such other information), department and officer by that Lender for the purposes of Clause ‎33.2 (Contact Details) and paragraph (a)(ii) of Clause ‎33.5 (Electronic communication) and the Facility

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Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender.

21.16    Credit Appraisal by the Lenders

Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Lender confirms to each Administrative Party that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with any Finance Document including but not limited to:

(a)         the financial condition, status and nature of each member of the Group;

(b)         the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;

(c)         whether that Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and

(d)         the adequacy, accuracy or completeness of any information provided by the Facility Agent, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document.

21.17    Deduction from amounts payable by the Facility Agent

If any Party owes an amount to the Facility Agent under the Finance Documents the Facility Agent may, after giving notice to that Party, deduct an amount not exceeding that amount from any payment to that Party which the Facility Agent would otherwise be obliged to make under the Finance Documents and apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of the Finance Documents that Party shall be regarded as having received any amount so deducted.

21.18    Facility Agent’s management time

Any amount payable to the Facility Agent under Clause 24.2(b) (Other indemnities), Clause 25.1 (Transaction expenses) and Clause 21.12 (Lenders’ indemnity to the Facility Agent) shall include the cost of utilising the Facility Agent’s management time or other resources and will be calculated on the basis of such reasonable daily or hourly rates as the Facility Agent may notify to the Company and the Lenders, and is in addition to any fee paid or payable to the Facility Agent under Clause 23 (Fees).

21.19    Role of Reference Banks

(a)         No Reference Bank is under any obligation to provide a quotation or any other information to the Facility Agent.

(b)         No Reference Bank (acting in its capacity as such) will be liable for any action taken by it under or in connection with any Finance Document, or for any Reference Bank Quotation, unless directly caused by its gross negligence or wilful misconduct.

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(c)         No Party (other than the relevant Reference Bank) may take any proceedings against any officer, employee or agent of any Reference Bank in respect of any claim it might have against that Reference Bank or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document, or to any Reference Bank Quotation, and any officer, employee or agent of each Reference Bank may rely on this Clause 21.19 subject to Clause 1.2(e) and the provisions of the Contracts (Rights of Third Parties) Act 1999.

21.20    Third party Reference Banks

A Reference Bank which is not a Party may rely on Clause 21.19 (Role of Reference Banks), Clause 26.2(b) and Clause 11.6 (Confidentiality of Funding Rates and Reference Bank Quotations) subject to Clause 1.2(e) and the provisions of the Contracts (Rights of Third Parties) Act 1999.

22.        EVIDENCE AND CALCULATIONS

22.1      Accounts

Accounts maintained by a Finance Party in connection with this Agreement are prima facie evidence of the matters to which they relate for the purpose of any litigation or arbitration proceedings.

22.2      Certificates and determinations

Any certification or determination by a Finance Party of a rate or amount under the Finance Documents will be, in the absence of manifest error, conclusive evidence of the matters to which it relates.

22.3      Calculations

Any interest or fee accruing under a Finance Document accrues from day to day and is calculated on the basis of the actual number of days elapsed and a year of 360 or 365 days or otherwise, depending on what the Facility Agent determines is market practice.

23.        FEES

23.1      Facility Agent’s fee

The Company must pay to the Facility Agent for its own account an agency fee in the manner agreed in the Fee Letter between the Facility Agent and the Company.

23.2      Arrangement fees

The Company must pay to the Mandated Lead Arrangers arrangement fees for their own account in the manner agreed in the Fee Letter between the Facility Agent (for the account of the Mandated Lead Arrangers) and the Company.

23.3      Commitment fee

(a)         The Company must pay to the Facility Agent (for the account of each Lender) a commitment fee computed at the rate of 35 per cent. of the Margin on that Lender’s Available Commitment; and

(b)         Accrued commitment fee is payable quarterly in arrear. Accrued commitment fee is also payable to the Facility Agent for the account of the Lenders on:

(i)          the first Utilisation Date;

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(ii)         the last date of the applicable Availability Period; and

(iii)       (for the account of the relevant Lenders only) the date a relevant Lender’s Commitment is cancelled in full.

(c)         No commitment fee is payable to the Facility Agent (for the account of a Lender) on any Available Commitment of that Lender for any day on which that Lender is a Defaulting Lender.

23.4      Utilisation Fee

(a)         The Company shall pay to the Facility Agent for distribution to each of the Lenders pro rata to the proportion its Commitment bears to the Total Commitments from time to time a utilisation fee computed by reference to the table below:

 

 

 

 

 

Column 1

Utilisation of Total Commitments

Column 2

Fee (per cent. per annum)

Less than or equal to 331/3 per cent.

0.075

Less than or equal to 662/3 per cent. but greater than 331/3 per cent.

0.15

Greater than 662/3 per cent.

0.30

 

(b)         Utilisation fee is payable on the amount of each Lender’s share in the Utilisations.

(c)         Utilisation fee is calculated and accrues on a daily basis and is payable quarterly in arrear.

24.        INDEMNITIES AND BREAK COSTS

24.1      Currency indemnity

(a)         The Company shall, as an independent obligation, indemnify each Finance Party against any loss or liability which that Finance Party incurs as a consequence of:

(i)          that Finance Party receiving an amount in respect of an Obligor’s liability under the Finance Documents; or

(ii)         that liability being converted into a claim, proof, judgment or order,

in a currency other than the currency in which the amount is expressed to be payable under the relevant Finance Document.

(b)         Unless otherwise required by law, each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency other than that in which it is expressed to be payable.

24.2      Other indemnities

(a)         The Company must indemnify each Finance Party against any loss or liability which that Finance Party incurs as a consequence of:

(i)          the occurrence of any Event of Default;

(ii)         any failure by an Obligor to pay any amount due under a Finance Document on its due date, including any resulting from any distribution or redistribution of any amount among the Lenders under this Agreement;

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(iii)       (other than by reason of negligence or default by that Finance Party) a Loan not being made after a Request has been delivered for that Loan; or

(iv)        a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment.

The Company’s liability in each case includes any loss or expense on account of funds borrowed, contracted for or utilised to fund any amount payable under any Finance Document, any amount repaid or prepaid or any Loan.

(b)         The Company must indemnify the Facility Agent against any loss or liability incurred by the Facility Agent as a result of:

(i)          investigating any event which the Facility Agent reasonably believes to be a Default; or

(ii)         acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or

(iii)       instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement.

(c)         The indemnity under paragraph (b) above is a continuing obligation, independent of the Company’s other obligations under or in connection with this Agreement or any other Finance Document, and survives after this Agreement is terminated.

24.3      Break Costs

(a)         Each Borrower must pay to each Lender its Break Costs.

(b)         Break Costs are the amount (if any) determined by the relevant Lender by which:

(i)          the interest which that Lender would have received for the period from the date of receipt of any part of its share in a Loan or an overdue amount to the last day of the applicable Term for that Loan or overdue amount if the principal or overdue amount received had been paid on the last day of that Term;

exceeds

(ii)        the amount which that Lender would be able to obtain by placing an amount equal to the amount received by it on deposit with a leading bank for a period starting on the Business Day following receipt and ending on the last day of the applicable Term.

(c)         Each Lender must supply to the Facility Agent for the relevant Borrower details of the amount of any Break Costs claimed by it under this Clause.

25.        EXPENSES

25.1      Transaction expenses

(a)         The Company must pay to each Administrative Party the amount of all costs and expenses (including legal fees) reasonably incurred by it in connection with the negotiation, preparation, printing, execution and syndication of:

(i)          this Agreement and any other documents referred to in this Agreement; and

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(ii)         any other Finance Documents (other than a Transfer Certificate) executed after the date of this Agreement; and

(b)         Without limiting the generality of the foregoing if:

(i)          an Obligor requests an amendment, waiver or consent; or

(ii)         an amendment is required pursuant to Clause 26.5 (Change of currency),

the Company shall, within three Business Days of receipt of an invoice, reimburse the Facility Agent for the amount of all costs and expenses (including legal fees) reasonably incurred by the Facility Agent in responding to, evaluating, negotiating or complying with the applicable request or requirement.

25.2      Enforcement costs

The Company must pay to each Finance Party the amount of all costs and expenses (including legal fees) incurred by it in connection with the enforcement of, or the preservation of any rights under, any Finance Document.

26.        AMENDMENTS AND WAIVERS

26.1      Procedure

(a)         Except as provided in this Clause, any term of the Finance Documents may be amended or waived with the agreement of the Company and the Majority Lenders. The Facility Agent may effect, on behalf of any Finance Party, an amendment or waiver allowed under this Clause.

(b)         The Facility Agent must promptly notify the other Parties of any amendment or waiver effected by it under paragraph (a) above. Any such amendment or waiver is binding on all the Parties.

(c)         Paragraph (c) of Clause 27.13 (Pro rata interest settlement) shall apply to this Clause 26.

26.2      Exceptions

(a)         An amendment or waiver which relates to:

(i)          the definition of “Majority Lenders” in Clause 1.1 (Definitions);

(ii)         an extension of the date of payment of any amount to a Lender under the Finance Documents;

(iii)       a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fee or other amount payable to a Lender under the Finance Documents;

(iv)        an increase in, or an extension of, a Commitment;

(v)         a release of an Obligor otherwise than in accordance with Clause 27.7 (Resignation of an Obligor (other than the Company)) or as a result of a disposal permitted under Clause 19.8 (Disposals);

(vi)        a term of a Finance Document which expressly requires the consent of each Lender;

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(vii)       the right of a Lender to assign or transfer its rights or obligations under the Finance Documents; or

(viii)     this Clause, Clause 8.2 (Mandatory prepayment – change of control), Clause 35 (Governing law) or Clause 36 (Enforcement),

may only be made with the consent of all the Lenders.

(b)         An amendment or waiver which relates to the rights or obligations of an Administrative Party may only be made with the consent of that Administrative Party.

26.3      Disenfranchisement of Defaulting Lenders

(a)         For so long as a Defaulting Lender has any Available Commitment, in ascertaining the Majority Lenders or whether any given percentage (including, for the avoidance of doubt, unanimity) of the Total Commitments has been obtained to approve any request for a consent, waiver, amendment or other vote under the Finance Documents, that Defaulting Lender’s Commitments will be reduced by the amount of its Available Commitments and, to the extent that reduction results in that Defaulting Lender’s Total Commitments being zero, that Defaulting Lender shall be deemed not to be a Lender for the purpose of this paragraph (a).

(b)         If a Defaulting Lender fails to respond to a request for a consent, waiver, amendment or other vote under the Finance Documents or any other vote of the Lenders under the terms of this Agreement within 10 Business Days in relation to consents, waivers, amendments or votes which require Majority Lender consent, and within 15 Business Days in relation to consents, waivers, amendments or votes which require all Lender consent (unless the Company and the Facility Agent agree to a longer time period) of that request being made, its Commitment and/or participation shall not be included for the purpose of calculating the Total Commitments or participations under the Revolving Facility when ascertaining whether any relevant percentage of Total Commitments and/or participations has been obtained to approve that request.

(c)         For the purposes of this Clause, the Facility Agent may assume that the following Lenders are Defaulting Lenders:

(i)          any Lender which has notified the Facility Agent that it has become a Defaulting Lender; and

(ii)         any Lender in relation to which it is aware that any of the events or circumstances referred to in paragraphs (a), (b) or (c) of the definition of Defaulting Lender has occurred,

unless it has received notice to the contrary from the Lender concerned or the Facility Agent is otherwise aware that the Lender has ceased to be a Defaulting Lender.

26.4      Replacement of a Defaulting Lender

(a)         The Company may, at any time a Lender has become and continues to be a Defaulting Lender, by giving five Business Days’ prior written notice to the Facility Agent and such Lender:

(i)          replace such Lender by requiring such Lender to (and to the extent permitted by law such Lender shall) transfer pursuant to Clause 27 (Changes to the Parties) all (and not part only) of its rights and obligations under this Agreement; or

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(ii)         require such Lender to (and to the extent permitted by law such Lender shall) transfer pursuant to Clause 27 (Changes to the Parties) all (and not part only) of the undrawn Commitment of the Lender,

to a Lender or other Eligible Institution (a Replacement Lender), and which (unless the Facility Agent is an Impaired Agent) is acceptable to the Facility Agent (acting reasonably) and which confirms its willingness to assume and does assume all the obligations or all the relevant obligations of the transferring Lender (including the assumption of the transferring Lender’s participations or unfunded participations (as the case may be) on the same basis as the transferring Lender) for a purchase price in cash payable at the time of transfer equal to the outstanding principal amount of such Lender’s participation in the outstanding Utilisations and all accrued interest, Break Costs and other amounts payable in relation thereto under the Finance Documents.

(b)         Any transfer of rights and obligations of a Defaulting Lender pursuant to this Clause shall be subject to the following conditions:

(i)          the Company shall have no right to replace the Facility Agent;

(ii)         neither the Facility Agent nor the Defaulting Lender shall have any obligation to the Company to find a Replacement Lender;

(iii)       the transfer must take place no later than 30 days after the notice referred to in paragraph (a) above; and

(iv)        in no event shall the Defaulting Lender be required to pay or surrender to the Replacement Lender any of the fees received by the Defaulting Lender pursuant to the Finance Documents.

26.5      Change of currency

If a change in any currency of a country occurs (including where there is more than one currency or currency unit recognised at the same time as the lawful currency of a country), this Agreement will be amended to the extent the Facility Agent (acting reasonably and after consultation with the Company) determines is necessary to reflect the change.

26.6      Replacement of Screen Rate

(a)         Subject to paragraph (b) of Clause 26.2 (Exceptions), if a Screen Rate Replacement Event has occurred in relation to any Screen Rate for a currency which can be selected for a Loan, any amendment or waiver which relates to:

(i)          providing for the use of a Replacement Benchmark in relation to that currency in place of (or in addition to) the affected Screen Rate; and

(ii)

(A)        aligning any provision of any Finance Document to the use of that Replacement Benchmark;

(B)        enabling that Replacement Benchmark to be used for the calculation of interest under this Agreement (including, without limitation, any consequential changes required to enable that Replacement Benchmark to be used for the purposes of this Agreement);

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(C)        implementing market conventions applicable to that Replacement Benchmark;

(D)        providing for appropriate fallback (and market disruption) provisions for that Replacement Benchmark; or

(E)        adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one Party to another as a result of the application of that Replacement Benchmark (and if any adjustment or method for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall be determined on the basis of that designation, nomination or recommendation),

may be made with the consent of the Facility Agent (acting on the instructions of the Majority Lenders) and the Company.

(b)         If any Lender fails to respond to a request for an amendment or waiver described in paragraph (a) above within 15 Business Days (or such longer time period in relation to any request which the Company and the Facility Agent may agree) of that request being made:

(i)          its Commitment shall not be included for the purpose of calculating the Total Commitments when ascertaining whether any relevant percentage of Total Commitments has been obtained to approve that request; and

(ii)         its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request.

(c)         In this Clause:

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

Replacement Benchmark means a benchmark rate which is:

(i)          formally designated, nominated or recommended as the replacement for a Screen Rate by:

(A)        the administrator of that Screen Rate (provided that the market or economic reality that such benchmark rate measures is the same as that measured by that Screen Rate); or

(B)        any Relevant Nominating Body,

and if replacements have, at the relevant time, been formally designated, nominated or recommended under both paragraphs, the “Replacement Benchmark” will be the replacement under paragraph (B) above;

(ii)         in the opinion of the Majority Lenders and the Company, generally accepted in the international or any relevant domestic syndicated loan markets as the appropriate successor to that Screen Rate; or

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(iii)       in the opinion of the Majority Lenders and the Company, an appropriate successor to a Screen Rate.

Screen Rate Replacement Event means, in relation to a Screen Rate:

(i)          the methodology, formula or other means of determining that Screen Rate has, in the opinion of the Majority Lenders and the Company materially changed;

(ii)         (A)

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

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

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

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

(C)        the supervisor of the administrator of that Screen Rate publicly announces that such Screen Rate has been or will be permanently or indefinitely discontinued; or

(D)        the administrator of that Screen Rate or its supervisor announces that that Screen Rate may no longer be used; or

(iii)       in the opinion of the Majority Lenders and the Company, that Screen Rate is otherwise no longer appropriate for the purposes of calculating interest under this Agreement.

26.7      Disruption to payment systems etc.

If either the Facility Agent determines (in its discretion) that a Disruption Event has occurred or the Facility Agent is notified by the Company that a Disruption event has occurred:

(a)         the Facility Agent may, and shall if requested to do so by the Company, consult with the Company with a view to agreeing with the Company such changes to the operation or administration of the Revolving Facility as the Facility Agent may deem necessary in the circumstances;

(b)         the Facility Agent shall not be obliged to consult with the Company in relation to any changes mentioned in paragraph (a) above if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;

(c)         the Facility Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) above but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;

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(d)         any such changes agreed upon by the Facility Agent and the Company shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of Clause 26 (Amendments and Waivers);

(e)         the Facility Agent shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 26.7; and

(f)         the Facility Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.

26.8      Waivers and remedies cumulative

The rights of each Finance Party under the Finance Documents:

(a)         may be exercised as often as necessary;

(b)         are cumulative and not exclusive of its rights under the general law; and

(c)         may be waived only in writing and specifically.

Delay in exercising or non exercise of any right is not a waiver of that right.

27.        CHANGES TO THE PARTIES

27.1      Assignments and transfers by Obligors

No Obligor may assign or transfer any of its rights and obligations under the Finance Documents without the prior consent of all the Lenders.

27.2      Assignments and transfers by Lenders

(a)         A Lender (the Existing Lender) may, subject to the following provisions of this Clause, at any time assign or transfer (including by way of novation) any of its rights and obligations under this Agreement to another bank or financial institution or to a trust, fund or other entity regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets which:

(i)          is a Qualifying Lender, as defined in Clause 12.1 (General); and

(ii)         other than if an Event of Default is outstanding, has a minimum of two credit ratings of either ‘A-’ or higher by Standard & Poor’s, A3 or higher by Moody’s or a comparable rating from a nationally recognised credit rating agency for its longer term debt obligations,

(the New Lender).

(b)         A transfer of part of a Commitment must be in a minimum amount of at least U.S.$20,000,000 (or its equivalent) and an integral multiple of U.S.$5,000,000 (or its equivalent).

(c)         The consent of the Company is required for any assignment or transfer to a New Lender unless:

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(i)          an Event of Default is outstanding; or

(ii)         the assignment or transfer:

(A)        is to another Lender; or

(B)        is to an Affiliate of a Lender,

provided that such transferee or assignee has a rating that complies with paragraph (a)(ii) above.

(d)         The consent of the Company given pursuant to paragraph (c) must not be unreasonably withheld or delayed. The Company will be deemed to have given its consent 10 Business Days after the Company is given notice of the request unless it is expressly refused by the Company within that time.

(e)         A transfer of obligations will be effective only if:

(i)          either:

(A)        the obligations are novated in accordance with the following provisions of this Clause; or

(B)        the New Lender confirms to the Facility Agent and the Company in form and substance satisfactory to the Facility Agent that it is bound by the terms of this Agreement as a Lender. On the transfer becoming effective in this manner the Existing Lender will be released from its obligations under this Agreement to the extent that they are transferred to the New Lender; and

(ii)         on performance by the Facility Agent of all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to such assignment to a New Lender, the completion of which the Facility Agent shall promptly notify to the Existing Lender and the New Lender.

(f)         Unless the Facility Agent otherwise agrees, the New Lender must pay to the Facility Agent for its own account, on or before the date any assignment or transfer occurs, a fee of U.S.$4,000.

(g)         Any reference in this Agreement to a Lender includes a New Lender but excludes a Lender if no amount is or may be owed to or by it under this Agreement.

(h)         Each New Lender, by executing the relevant Transfer Certificate, confirms, for the avoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the transfer or assignment becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.

27.3      Procedure for transfer by way of novations

(a)         A novation is effected if the Existing Lender and the New Lender deliver to the Facility Agent a duly completed Transfer Certificate and the Facility Agent executes it.

(b)         Subject to paragraph (c) below, the Facility Agent must execute as soon as reasonably practicable a Transfer Certificate delivered to it and which appears on its face to be in order.

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(c)         The Facility Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender.

(d)         Each Party (other than the Existing Lender and the New Lender) irrevocably authorises the Facility Agent to execute any duly completed Transfer Certificate on its behalf.

(e)         Subject to Clause 27.13 (Pro rata interest settlement), on the Transfer Date:

(i)          the New Lender will assume the rights and obligations of the Existing Lender expressed to be the subject of the novation in the Transfer Certificate in substitution for the Existing Lender; and

(ii)         the Existing Lender will be released from those obligations and cease to have those rights.

27.4      Limitation of responsibility of Existing Lender

(a)         Unless expressly agreed to the contrary, an Existing Lender is not responsible to a New Lender for the legality, validity, adequacy, accuracy, completeness or performance of:

(i)          any Finance Document or any other document; or

(ii)         any statement or information (whether written or oral) made in or supplied in connection with any Finance Document,

and any representations or warranties implied by law are excluded.

(b)         Each New Lender confirms to the Existing Lender and the other Finance Parties that it:

(i)          has made, and will continue to make, its own independent appraisal of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement; and

(ii)         has not relied exclusively on any information supplied to it by the Existing Lender in connection with any Finance Document.

(c)         Nothing in any Finance Document requires an Existing Lender to:

(i)          accept a re transfer from a New Lender of any of the rights and obligations assigned or transferred under this Clause; or

(ii)         support any losses incurred by the New Lender by reason of the non performance by any Obligor of its obligations under any Finance Document or otherwise.

27.5      Costs resulting from change of Lender or Facility Office

If:

(a)         a Lender assigns or transfers any of its rights and obligations under the Finance Documents or changes its Facility Office; and

(b)         as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to pay a Tax Payment or an Increased Cost,

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then the Obligor need only pay that Tax Payment or Increased Cost to the same extent that it would have been obliged to if no assignment, transfer or change had occurred, except that this paragraph shall not apply:

(i)          if the assignment, transfer or change is made by a Lender to mitigate any circumstances giving rise to the Tax Payment, Increased Cost or right to be prepaid and/or cancelled by reason of illegality; or

(ii)         in respect of a Tax Payment, if a Treaty Lender has included a confirmation that it wished the HMRC DT Treaty Passport scheme to apply to this Agreement in accordance with Clause 12.2(g)(ii)(B) (Tax gross up) and the Obligor making the Tax Payment has not made a Borrower DTTP Filing.

27.6      Additional Obligors

(a)

(i)          Subject to sub-paragraph (ii) below and compliance with Clause 18.6 (“Know Your Customer” checks), the Company may elect for any of its wholly owned Subsidiaries to become an Additional Obligor in respect of the Revolving Facility.

(ii)         If the Additional Obligor is incorporated in a jurisdiction other than the U.K. the prior consent of all the Lenders is required, which shall be conditional upon, but not limited to, the agreement of appropriate amendments to Clause 12 (Taxes) to take into account the jurisdiction of incorporation of that Additional Obligor.

(b)         If one of the Subsidiaries of the Company is to become an Additional Obligor, then the Company must (following consultation with the Facility Agent) deliver to the Facility Agent the relevant documents and evidence listed in Part B of Schedule 2 (Conditions precedent documents).

(c)         The relevant Subsidiary will become an Additional Obligor when the Facility Agent notifies the other Finance Parties and the Company that it has received (or waived receipt of) all of the documents and evidence referred to in paragraph (b) above in form and substance satisfactory to it. The Facility Agent must give this notification as soon as reasonably practicable.

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

(e)         Delivery of an Accession Agreement, executed by the relevant Subsidiary and the Company, to the Facility Agent constitutes confirmation by that Subsidiary and the Company that the Repeating Representations are then correct.

(f)         Clause 16 (Guarantee and Indemnity) will be amended to the extent the Facility Agent (acting reasonably and after consultation with the Company) determines is necessary to reflect any requirement under the law of the jurisdiction of any Additional Obligor to limit the guarantee to be provided by that Additional Obligor.

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27.7      Resignation of an Obligor (other than the Company)

(a)         In this Clause, Resignation Request means a letter in the form of Schedule 6 (Form of Resignation Request), with such amendments as the Facility Agent may approve or reasonably require.

(b)         The Company may request that an Obligor (other than the Company) ceases to be an Obligor by giving to the Facility Agent a duly completed Resignation Request.

(c)         The Facility Agent must accept a Resignation Request and notify the Company and the Lenders of its acceptance if:

(i)          no Default is outstanding or would result from the acceptance of the Resignation Request and the Company confirms this; and

(ii)         no amount owed by that Obligor under this Agreement is still outstanding.

(d)         The Obligor will cease to be a Borrower and/or a Guarantor, as appropriate, when the Facility Agent gives the notification referred to in paragraph (c) above.

27.8      Affiliates of Lenders

(a)         Each Lender may fulfil its obligations in respect of any Loan through an Affiliate if:

(i)          the relevant Affiliate is specified in this Agreement as a Lender or becomes a Lender by means of a Transfer Certificate in accordance with this Agreement; and

(ii)         the Loans in which that Affiliate will participate are specified in this Agreement, a Transfer Certificate or in a notice given by that Lender to the Facility Agent and the Company.

In this event, the Lender and the Affiliate will participate in Loans in the manner provided for in sub-paragraph (ii) above.

(b)         If paragraph (a) above applies, the Lender and its Affiliate will be treated as having a single Commitment and a single vote, but, for all other purposes, will be treated as separate Lenders.

27.9      Changes to the Reference Banks

If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender of which it is an Affiliate) ceases to be a Lender, the Facility Agent must (with the agreement of the Company) appoint another Lender or an Affiliate of a Lender to replace that Reference Bank.

27.10    Replacement of a Lender

(a)         For the purposes of this Clause, Non-Consenting Lender means a Lender who does not agree to a consent or amendment or who fails to respond to a request for a consent or amendment where:

(i)          the Company or the Facility Agent has requested the Lenders to consent to a departure from or waiver of any provision of the Finance Documents or to agree to any amendment to the Finance Documents;

(ii)         the relevant consent or amendment requires the agreement of all Lenders;

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(iii)       a period of not less than 15 Business Days (or such longer period as the Company and the Facility Agent may agree) has elapsed from the date the consent or amendment was requested;

(iv)        the Majority Lenders have agreed to that consent or amendment; and

(v)         the Company has notified the Lender it will treat it as a Non-Consenting Lender.

(b)         If at any time any Lender becomes a Non-Consenting Lender, then the Company may, on 10 Business Days’ prior notice to the Facility Agent and that Lender, replace that Lender by causing it to (and that Lender shall) transfer in accordance with this Clause 27 all of its rights and obligations under this Agreement to a Lender or other person selected by the Company and acceptable to the Facility Agent (acting reasonably) for a purchase price equal to the outstanding principal amount of that Lender’s participation in the outstanding Loans and all accrued interest and fees and other amounts payable to that Lender under this Agreement.

(c)         The Company shall have no right to replace the Facility Agent and neither the Facility Agent nor any Lender shall have any obligation to the Company to find a replacement Lender or other such entity.

(d)         The Company may only replace a Non-Consenting Lender if that replacement takes place no later than 180 days after the date the Non-Consenting Lender becomes a Non-Consenting Lender.

(e)         No Lender replaced under this Clause may be required to pay or surrender to that replacement Lender or other entity any of the fees received by it.

(f)         The Company’s right to replace a Non-Consenting Lender under this Clause is, and shall be, in addition to, and not in lieu of, all other rights and remedies available to the Company against that Non-Consenting Lender under this Agreement, at law, in equity, or by statute.

27.11    Copy of Transfer Certificate or Increase Confirmation to the Company

The Facility Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate or Increase Confirmation, send to the Company a copy of that Transfer Certificate or Increase Confirmation.

27.12    Security over Lenders’ rights

In addition to the other rights provided to Lenders under this Clause 27, each Lender may without consulting with or obtaining consent from any Obligor, at any time charge, assign or otherwise create any Security Interest in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender including without limitation:

(a)         any charge, assignment or other Security Interest to secure obligations to a federal reserve or central bank or to governmental authorities, agencies or departments including HM Treasury; and

(b)         in the case of any Lender which is a fund, any charge, assignment or other Security Interest granted to any holders (or trustee or Representatives of holders) of obligations owed, or securities issued by that Lender as security for those obligations or securities,

except that no such charge, assignment or Security Interest shall:

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(i)          release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security Interest for the Lender as a party to any of the Finance Documents; or

(ii)         require any payments to be made by an Obligor other than or in excess of, or grant to any person any more extensive rights than, those required to be made or granted to the relevant Lender under the Finance Documents.

27.13    Pro rata interest settlement

(a)         If the Facility Agent has notified the Lenders that it is able to distribute interest payments on a pro rata basis to Existing Lenders and New Lenders then (in respect of any transfer pursuant to Clause ‎27.3 (Procedure for transfer by way of novations) the Transfer Date of which, in each case, is after the date of such notification and is not on the last day of a Term):

(i)          any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date (Accrued Amounts) and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Term (or, if the Term is longer than six months, on the next of the dates which falls at six monthly intervals after the first day of that Term);

(ii)         the rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts, so that, for the avoidance of doubt:

(A)        when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and

(B)        the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause, have been payable to it on that date, but after deduction of the Accrued Amounts;

(b)         In this Clause 27.13, references to “Term” shall be construed to include a reference to any other period for accrual of fees.

(c)         An Existing Lender which retains the right to Accrued Amounts pursuant to this Clause 27.13 but which does not have a Commitment shall be deemed not to be a Lender for the purposes of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve any request for a consent, waiver, amendment or other vote of Lenders under the Finance Documents.

28.        CONFIDENTIALITY

28.1      Confidential Information

Each Finance Party agrees to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by Clause 28.2 (Disclosure of Confidential Information) and Clause 28.3 (Disclosure to numbering service providers), and to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to its own confidential information.

28.2      Disclosure of Confidential Information

Any Finance Party may disclose:

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(a)         to any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;

(b)         to any person:

(i)          to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents or which succeeds (or which may potentially succeed) it as Agent and, in each case, to any of that person’s Affiliates, Representatives and professional advisers;

(ii)         with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that person’s Affiliates, Representatives and professional advisers;

(iii)       appointed by any Finance Party or by a person to whom paragraph (b)(i) or (ii) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed under paragraph (a) of Clause 21.15 (Relationship with Lenders));

(iv)        who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (b)(i) or (b)(ii) above;

(v)         to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;

(vi)        to whom or for whose benefit that Finance Party charges, assigns or otherwise creates a Security Interest (or may do so) pursuant to Clause 27.12 (Security over Lenders’ rights);

(vii)       to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes;

(viii)     who is a Party; or

(ix)        with the consent of the Company,

in each case, such Confidential Information as that Finance Party shall consider appropriate if:

(A)        in relation to paragraphs (b)(i), (b)(ii) and (b)(iii) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to

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professional obligations to maintain the confidentiality of the Confidential Information;

(B)        in relation to paragraph (b)(iv) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information;

(C)        in relation to paragraphs (b)(v), (b)(vi) and (b)(vii) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances;

(c)         to any person appointed by that Finance Party or by a person to whom paragraph (b)(i) or (ii) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this paragraph (c) if the service provider to whom the Confidential Information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Company and the relevant Finance Party; and

(d)         to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors if the rating agency to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information.

28.3      Disclosure to numbering service providers

(a)         Any Finance Party may disclose to any national or international numbering service provider appointed by that Finance Party to provide identification numbering services in respect of this Agreement, the Revolving Facility and/or one or more Obligors the following information:

(i)          names of Obligors;

(ii)         country of domicile of Obligors;

(iii)       place of incorporation of Obligors;

(iv)        date of this Agreement;

(v)         Clause 35 (Governing law);

(vi)        the names of the Facility Agent and the Mandated Lead Arrangers;

(vii)       date of each amendment and restatement of this Agreement;

(viii)     amount of, and name of, the Revolving Facility (and any tranches);

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(ix)        amount of Total Commitments;

(x)         currencies of the Revolving Facility;

(xi)        type of facility;

(xii)       ranking of the Revolving Facility;

(xiii)     Final Maturity Date of the Revolving Facility;

(xiv)      changes to any of the information previously supplied pursuant to paragraphs (i) to (xiii) above; and

(xv)       such other information agreed between such Finance Party and the Company,

to enable such numbering service provider to provide its usual syndicated loan numbering identification services.

(b)         The Parties acknowledge and agree that each identification number assigned to this Agreement, the Revolving Facility and/or one or more Obligors by a numbering service provider and the information associated with each such number may be disclosed to users of its services in accordance with the standard terms and conditions of that numbering service provider.

28.4      Entire agreement

This Clause 28 constitutes the entire agreement between the Parties in relation to the obligations of the Finance Parties under the Finance Documents regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information.

28.5      Inside information

Each of the Finance Parties acknowledges that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and each of the Finance Parties undertakes not to use any Confidential Information for any unlawful purpose.

28.6      Notification of disclosure

Each of the Finance Parties agrees (to the extent permitted by law and regulation) to inform the Company:

(a)         of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (b)(v) of Clause 28.2 (Disclosure of Confidential Information) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and

(b)         upon becoming aware that Confidential Information has been disclosed in breach of this Clause 28.

28.7      Continuing obligations

The obligations in this Clause 28 are continuing and, in particular, shall survive and remain binding on each Finance Party for a period of 12 months from the earlier of:

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(a)         the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and

(b)         the date on which such Finance Party otherwise ceases to be a Finance Party.

29.        SET OFF

Following an Event of Default, a Finance Party may set off any matured obligation owed to it by an Obligor under the Finance Documents (to the extent beneficially owned by that Finance Party) against any obligation (whether or not matured) owed by that Finance Party to that Obligor, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set off.

30.        PRO RATA SHARING

30.1      Redistribution

If any amount owing by an Obligor under this Agreement to a Lender (the recovering Lender) is discharged by payment, set off or any other manner other than through the Facility Agent under this Agreement (a recovery), then:

(a)         the recovering Lender must, within three Business Days, supply details of the recovery to the Facility Agent;

(b)         the Facility Agent must calculate whether the recovery is in excess of the amount which the recovering Lender would have received if the recovery had been received by the Facility Agent under this Agreement; and

(c)         the recovering Lender must pay to the Facility Agent an amount equal to the excess (the redistribution).

30.2      Effect of redistribution

(a)         The Facility Agent must treat a redistribution as if it were a payment by the relevant Obligor under this Agreement and distribute it among the Lenders accordingly.

(b)         When the Facility Agent makes a distribution under paragraph (a) above, the recovering Lender will be subrogated to the rights of the Finance Parties which have shared in that redistribution.

(c)         If and to the extent that the recovering Lender is not able to rely on any rights of subrogation under paragraph (b) above, the relevant Obligor will owe the recovering Lender a debt which is equal to the redistribution, immediately payable and of the type originally discharged.

(d)         If:

(i)          a recovering Lender must subsequently return a recovery, or an amount measured by reference to a recovery, to an Obligor; and

(ii)         the recovering Lender has paid a redistribution in relation to that recovery,

each Finance Party must reimburse the recovering Lender all or the appropriate portion of the redistribution paid to that Finance Party, together with interest for the period while it held the

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re distribution. In this event, the subrogation in paragraph (b) above will operate in reverse to the extent of the reimbursement.

30.3      Exceptions

Notwithstanding any other term of this Clause, a recovering Lender need not pay a redistribution to the extent that:

(a)         it would not, after the payment, have a valid claim against the relevant Obligor in the amount of the redistribution; or

(b)         it would be sharing with another Finance Party any amount which the recovering Lender has received or recovered as a result of legal or arbitration proceedings, where:

(i)          the recovering Lender notified the Facility Agent of those proceedings; and

(ii)         the other Finance Party had an opportunity to participate in those proceedings but did not do so or did not take separate legal or arbitration proceedings as soon as reasonably practicable after receiving notice of them.

31.        SEVERABILITY

If a term of a Finance Document is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect:

(a)         the legality, validity or enforceability in that jurisdiction of any other term of the Finance Documents; or

(b)         the legality, validity or enforceability in other jurisdictions of that or any other term of the Finance Documents.

32.        COUNTERPARTS

Each Finance Document may be executed in any number of counterparts. This has the same effect as if the signatures on the counterparts were on a single copy of the Finance Document. Delivery of a counterpart of a Finance Document by email attachment or telecopy shall be an effective mode of delivery.

33.        NOTICES

33.1      In writing

(a)         Any formal communication in connection with a Finance Document must be in writing and, unless otherwise stated, may be given in person or by post.

(b)         Unless it is agreed to the contrary, any consent or agreement required under a Finance Document must be given in writing.

33.2      Contact details

(a)         Except as provided below, the contact details of each Party for all communications in connection with the Finance Documents are those notified by that Party for this purpose to the Facility Agent on or before the date it becomes a Party.

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(b)         The contact details of the Company for this purpose are:

Smith & Nephew PLC
15 Adam Street
London WC2N 6LA

Tel:       +44 (0) 20 7401 7646
For the attention of:        The Company Secretary

 

(c)         The contact details of the Facility Agent for operational duties as Facility Agent (such as drawdowns, interest rate fixing, interest/fee calculations and payments) are:

HSBC Bank plc
Corporate Trust & Loan Agency, Level 28
8 Canada Square
London E14 5HQ

Attention:           Loan Agency Operations

Facsimile:          +44 (0) 20 7991 4347

 

For non operational matters as Facility Agent (such as documentation; compliance with covenants; amendments and waivers etc.):

HSBC Bank plc
Corporate Trust & Loan Agency, Level 28
8 Canada Square
London E14 5HQ

Attention:           Natalie Gibbons

Telephone:         +44 20 7992 5641

E-mail:  natalie.gibbons@hsbc.com

 

(d)         Any Party may change its contact details by giving five Business Days’ notice to the Facility Agent or (in the case of the Facility Agent) to the other Parties.

(e)         Where a Party nominates a particular department or officer to receive a communication, a communication will not be effective if it fails to specify that department or officer.

33.3      Effectiveness

(a)         Except as provided below, any communication in connection with a Finance Document will be deemed to be given as follows:

(i)          if delivered in person, at the time of delivery; or

(ii)         if posted, five days after being deposited in the post, postage prepaid, in a correctly addressed envelope.

(b)         A communication given under paragraph (a) above but received on a non working day or after business hours in the place of receipt will only be deemed to be given on the next working day in that place.

(c)         A communication to the Facility Agent will only be effective on actual receipt by it.

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33.4      Communication when Facility Agent is Impaired Agent

If the Facility Agent is an Impaired Agent the Parties may, instead of communicating with each other through the Facility Agent, communicate with each other directly and (while the Facility Agent is an Impaired Agent) all the provisions of the Finance Documents which require communications to be made or notices to be given to or by the Facility Agent shall be varied so that communications may be made and notices given to or by the relevant Parties directly. This provision shall not operate after a replacement Facility Agent has been appointed unless such replacement Facility Agent becomes an Impaired Agent.

33.5      Electronic communication

(a)         Any communication to be made between any two Parties under or in connection with the Finance Documents may be made by electronic mail or other electronic means to the extent that those two Parties agree that, unless and until notified to the contrary, this is to be an accepted form of communication and if those two Parties:

(i)          notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and

(ii)         notify each other of any change to their address or any other such information supplied by them.

(b)         Any electronic communication made between those two Parties will be effective only when actually received in readable form and in the case of any electronic communication made by a Party to the Facility Agent only if it is addressed in such a manner as the Facility Agent shall specify for this purpose.

(c)         Any electronic communication which becomes effective, in accordance with paragraph (b) above, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on the following day.

(d)         Any reference in a Finance Document to a communication being sent or received shall be construed to include that communication being made available in accordance with this Clause 33.5.

33.6      Obligors

(a)         All communications under the Finance Documents to or from an Obligor must be sent through the Facility Agent.

(b)         All communications under the Finance Documents to or from an Obligor (other than the Company) must be sent through the Company.

(c)         Each Obligor (other than the Company) irrevocably appoints the Company to act as its agent:

(i)          to give and receive all communications under the Finance Documents;

(ii)         to supply all information concerning itself to any Finance Party; and

(iii)       to sign all documents under or in connection with the Finance Documents including, without limitation and for the avoidance of doubt, any amendments to the Finance Documents, any Request, or notice of a prepayment.

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(d)         Any communication given to the Company in connection with a Finance Document will be deemed to have been given also to the other Obligors.

(e)         The Facility Agent may assume that any communication made by the Company is made with the consent of each other Obligor.

34.        LANGUAGE

(a)         Any notice given in connection with a Finance Document must be in English.

(b)         Any other document provided in connection with a Finance Document must be:

(i)          in English; or

(ii)         (unless the Facility Agent otherwise agrees) accompanied by a certified English translation. In this case, the English translation prevails unless the document is a statutory or other official document.

35.        GOVERNING LAW

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

36.        ENFORCEMENT

36.1      Jurisdiction

(a)         The English courts have exclusive jurisdiction to settle any dispute in connection with any Finance Document or any non-contractual obligations arising out of or in connection with any Finance Document.

(b)         The English courts are the most appropriate and convenient courts to settle any such dispute and each Obligor waives objection to those courts on the grounds of inconvenient forum or otherwise in relation to proceedings in connection with any Finance Documents.

(c)         This Clause is for the benefit of the Finance Parties only. To the extent allowed by law, a Finance Party may take:

(i)          proceedings in any other court; and

(ii)         concurrent proceedings in any number of jurisdictions.

36.2      Service of process

(a)         Each Obligor (including, for the avoidance of doubt, each Additional Obligor) not incorporated in England and Wales irrevocably appoints the Company as its agent under the Finance Documents for service of process in any proceedings before the English courts (which appointment the Company hereby accepts).

(b)         If any person appointed as process agent is unable for any reason to act as agent for service of process, the Company (on behalf of all the Obligors) must immediately appoint another agent on terms acceptable to the Facility Agent. Failing this, the Facility Agent may appoint another agent for this purpose.

(c)         Each Obligor agrees that failure by a process agent to notify it of any process will not invalidate the relevant proceedings.

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(d)         This Clause does not affect any other method of service allowed by law.

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

 

 

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SCHEDULE 1

ORIGINAL LENDERS

Name of Original Lender

Commitment
(U.S.$)

Facility Office

Qualifying Lender status

HMRC Double Taxation
Treaty Passport scheme reference
number and jurisdiction of tax
residence (if applicable)

JPMorgan Chase Bank, N.A., London Branch

125,000,000

JPMorgan Chase Bank, N.A., London Branch

Qualifying Lender (other than a Treaty Lender)

 

Bank of America Merrill Lynch International Limited

125,000,000

Bank of America Merrill Lynch International Limited, 2 King Edward Street, London EC1A 1HQ United Kingdom

Qualifying Lender (other than a Treaty Lender)

 

Bank of China Limited, London Branch

125,000,000

Bank of China Limited, London Branch

Qualifying Lender (other than a Treaty Lender)

 

HSBC Bank plc

125,000,000

HSBC Bank plc, 8 Canada Square, Canary Wharf, London E14 5HQ, United Kingdom

Qualifying Lender (other than a Treaty Lender)

 

Mizuho Bank, Ltd.

125,000,000

Mizuho Bank, Ltd.

Qualifying Lender (other than a Treaty Lender)

 

Societe Generale, London Branch

125,000,000

Societe Generale, London Branch, 41 Tower Hill, London EC3N 4SG, United Kingdom

Qualifying Lender (other than a Treaty Lender)

 

Sumitomo Mitsui Banking Corporation, London Branch

125,000,000

Sumitomo Mitsui Banking Corporation, London Branch

Qualifying Lender (other than a Treaty Lender)

 

Wells Fargo Bank N.A., London Branch

125,000,000

Wells Fargo Bank N.A., London Branch, One Plantation Place, 30 Fenchurch Street, London EC3M 3BD, United Kingdom

Qualifying Lender (other than a Treaty Lender)

 

 

 

 

 

 

Total

1,000,000,000

 

 

 

 

 

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SCHEDULE 2

CONDITIONS PRECEDENT DOCUMENTS

Part A

To Be Delivered Before The First Request

Company

1.          A copy of the constitutional documents of the Company.

2.          A copy of a resolution of the board of directors of the Company or a certified extract from the minutes of a meeting of the board of directors of the Company approving the terms of, and the transactions contemplated by, this Agreement.

3.          A specimen of the signature of each person authorised on behalf of the Company to execute or witness the execution of any Finance Document or to sign or send any document or notice in connection with any Finance Document.

4.          A certificate of an authorised signatory of the Company:

(a)         confirming that utilising the Total Commitments in full would not breach any borrowing or guaranteeing limit binding on it; and

(b)         certifying that each copy document specified in Part A of Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.

5.          A Group structure chart.

Legal opinions

6.          A legal opinion of Allen & Overy LLP (legal advisers to the Facility Agent and the Mandated Lead Arrangers) as to matters of English law, in form and substance satisfactory to the Mandated Lead Arrangers.

Other documents and evidence

7.          Duly executed copies of each Fee Letter.

8.          Original Financial Statements.

9.          Evidence that all indebtedness of the Group under the Existing Facilities Agreement has been or will be discharged in full on or before the date of the first Request.

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Part B

For An Additional Obligor

Additional Obligors

1.          An Accession Agreement, duly executed by the Company and the Additional Obligor.

2.          A copy of the constitutional documents of the Additional Obligor.

3.          A copy of a resolution of the board of directors of the Additional Obligor approving the terms of, and the transactions contemplated by, the Accession Agreement and the Finance Documents.

4.          A specimen of the signature of each person authorised on behalf of the Additional Obligor to execute or witness the execution of any Finance Document or to sign or send any document or notice in connection with any Finance Document.

5.          In the case of an Additional Guarantor incorporated in the U.K., a copy of a resolution, signed by all (or any lower percentage agreed by the Facility Agent) of the holders of its issued or allotted shares, approving the terms of, and the transactions contemplated by, the Accession Agreement.

6.          If applicable, a copy of a resolution of the board of directors of each corporate shareholder in the Additional Guarantor approving the resolution referred to in paragraph 5 above.

7.          In the case of an Additional Guarantor incorporated in any jurisdiction other than the U.K., a copy of a resolution of the shareholders of that Additional Guarantor approving the terms of, and the transactions contemplated by, the Accession Agreement and the Finance Documents.

8.          A certificate of an authorised signatory of the Additional Obligor:

(a)         confirming that utilising and/or guaranteeing (as applicable) the Total Commitments in full would not breach any limit binding on it; and

(b)         certifying that each copy document specified in Part B of this Schedule is correct, complete and in full force and effect as at a date no earlier than the date of the Accession Agreement.

9.          If available, a copy of the latest audited accounts of the Additional Obligor.

10.        Compliance with Clause 18.6 (“Know Your Customer” checks).

Legal opinions

11.        A legal opinion of Allen & Overy LLP, legal advisers to the Facility Agent, addressed to the Finance Parties.

12.        If the Additional Obligor is incorporated in a jurisdiction other than England or the United States of America (or any state thereof, including the District of Columbia), a legal opinion from legal advisers to the Facility Agent in that jurisdiction, addressed to the Finance Parties.

13.        If the Additional Obligor is incorporated or formed in the United States of America (or any state thereof, including the District of Columbia), a legal opinion from legal advisers to the Additional Guarantor in that jurisdiction, addressed to the Finance Parties.

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Other documents and evidence

14.        A copy of any other authorisation or other document, opinion or assurance which the Facility Agent has notified the Company is necessary in connection with the entry into and performance of, and the transactions contemplated by, the Accession Agreement or for the validity and enforceability of any Finance Document.

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SCHEDULE 3

FORM OF REQUEST

To:        [HSBC Bank plc] as Facility Agent

From:     [BORROWER]

Date:     [            ]

Smith & Nephew PLC – USD 1,000,000,000 Facility Agreement dated 15 June 2018 (the Agreement)

1.          We refer to the Agreement. This is a Request. Terms defined in the Agreement have the same meaning in this Request unless given a different meaning in this Request.

2.          We wish to borrow a Loan on the following terms:

(a)         Utilisation Date: [            ]

(b)         Amount/currency: [            ]

(c)         Term: [            ].

3.          Our payment instructions are: [            ].